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INTERNATIONAL LAW STUDIES 

1995 

READINGS ON INTERNATIONAL LAW 

FROM THE NAVAL WAR COLLEGE REVIEW 

1978-1994 



Edited by 
John Norton Moore and Robert F. Turner 

Volume 68 



NAVAL WAR COLLEGE 
NEWPORT, RHODE ISLAND 



Library of Congress Cataloging-in-Publication Data 



Readings on International Law from the Naval War College Review 
1978-1994 / edited by John Norton Moore and Robert F. Turner, 
p. 625 cm. — (International law studies ; v. 68) 

Includes index. 

1. International law. 2. Maritime law. 
(U.S.) I. Moore, John Norton, 1937- 
III. Series. 

JX1295.U4 Vol.68 
QX3091] 
341 s— dc20 
[341.7'66] 



3. Naval War College 
II. Turner, Robert F. 



95-36278 
CIP 



TABLE OF CONTENTS 

Page 

FOREWORD xi 

PREFACE xiii 

PART ONE— THE ROLE OF LAW IN THE 

INTERNATIONAL SYSTEM 1 

CHAPTER 1— CONTEMPORARY INTERNATIONAL LAW: 
RELEVANT TO TODAY'S WOPXD? 

Horace B. Robertson, Jr. (Summer 1992) 3 

CHAPTER 2— MISCONCEPTIONS OF LAW AND 
MISGUIDED POLICY 

Alfred P. Rubin (Nov-Dec 1982) 19 

CHAPTER 3— RULES OF THUMB FOR GUT DECISIONS: 
INTERNATIONAL LAW IN EMERGENCIES 
Alfred P. Rubin (Mar-Apr 1982) 33 

PART TWO— OCEANS LAW 45 

CHAPTER 4— SEA POWER AND THE LAW OF THE SEA: 
THE NEED FOR A CONTEXTUAL APPROACH 

George K. Walker (Spring 1978) 47 

CHAPTER 5— LAW OF THE SEA 

Elliot L. Richardson (Mzy-Jun 1979) 63 

CHAPTER 6— LAW AND CONFLICT AT SEA 

Roger D. Wiegley (Jan-Feb 1980) 73 

CHAPTER 7— REGIONALISM AND THE LAW OF THE SEA: 
THE PERSIAN GULF PERSPECTIVE 

Charles G. MacDonald (Sep-Oct 1980) 85 

CHAPTER 8— LAW AND STRATEGY IN 
NORTHERN WATERS 

Ken Booth (Jul-Aug 1981) 95 



vi Contents 

CHAPTER 9— THE MARINE ENVIRONMENT AND 
MARITIME SECURITY IN SOUTHEAST ASIA: 
CONTROLLING OIL TANKER TRAFFIC IN THE STRAIT 
OF MALACCA 

Daniel P. Finn (Nov-Dec 1981) 119 

CHAPTER 10— THE CORDON SANITAIRE— IS IT USEFUL? 
IS IT PRACTICAL? 

Stanley F. Gilchrist (May-Jun 1982) 131 

CHAPTER 11— MARINE TECHNOLOGY TRANSFER 
AND THE LAW OF THE SEA 
James Stavridis Qul-Aug 1983) 147 

CHAPTER 12— LAW OF THE SEA— WHAT NOW? 

Jon L. Jacobson (Mar- Apr 1984) 159 

CHAPTER 13— A FRAMEWORK FOR SMALL NAVY THEORY: 
THE 1982 U.N. LAW OF THE SEA CONVENTION 

Nien-Tsu Alfred Hu and James K. Oliver (Spring 1988) .... 177 

CHAPTER 14 — THE RIGHT OF INNOCENT PASSAGE FOR 
WARSHIPS IN THE TERRITORIAL SEA: A RESPONSE 
TO THE SOVIET UNION 

Ronald D. Neubauer (Spring 1988) 189 

CHAPTER 15— TROUBLED WATERS OFF THE LAND 
OF THE MORNING CALM: A JOB FOR THE FLEET 
James R. Boma (Spring 1989) 197 

CHAPTER 16— AMERICA'S MARITIME BOUNDRY WITH 
THE SOVIET UNION 
John H. McNeill (Summer 1991) 219 

CHAPTER 17— THE KURILES: PASSAGE OR OBSTRUCTION 
TO REGIONAL PEACE? 

RexM. Takahashi (Autumn 1991) 231 

CHAPTER 18— DIPLOMACY AT SEA: U.S. FREEDOM OF 
NAVIGATION OPERATIONS IN THE BLACK SEA 

William J. Aceves (Spring 1993) 243 

CHAPTER 19— THE "NEW" LAW OF THE SEA AND THE 
LAW OF ARMED CONFLICT AT SEA 

Horace B. Roberston, Jr. (Oct 1992) 263 



Contents vii 
PART THREE— USE OF FORCE LAW 313 

CHAPTER 20— FIGHTING BY THE RULES 

Christopher Craig (May-Jun 1984) 315 

CHAPTER 21— GRENADA: THE SPIRIT AND THE LETTER 
OF THE LAW 

William T. DeCamp (May-Jun 1985) 321 

CHAPTER 22— INTERNATIONAL LAW AND THE USE OF 
FORCE IN PEACETIME: DO U.S. SHIPS HAVE TO TAKE 
THE FIRST HIT? 

George Bunn (May-Jun 1986) 331 

CHAPTER 23— AN APPROPRIATE USE OF FORCE 

James H. Webb, Jr. (Winter 1988) 343 

CHAPTER 24 — THE CONSTITUTION AND PRESIDENTIAL 
WAR MAKING AGAINST LIBYA 

David L. Hall (Summer 1989) 351 

CHAPTER 25— LAW IN SUPPORT OF POLICY IN PANAMA 

James P. Terry (Autumn 1990) 367 

PART FOUR— TERRORISM 375 

CHAPTER 26— REFLECTIONS ON TERRORIST HAVENS 

Robert A. Friedlander (Mar- Apr 1979) 377 

CHAPTER 27— COMBATING INTERNATIONAL 

TERRORISM: THE UNITED NATIONS DEVELOPMENTS 
L.F.E. Goldie (Winter 1979) 387 

CHAPTER 28— TERRORISM IS . . .? 

William R. Farrell (May-Jun 1980) 401 

CHAPTER 29— MILITARY INVOLVEMENT IN DOMESTIC 
TERROR INCIDENTS 

William R. Farrell Qul-Aug 1981) 411 

CHAPTER 30— TERRORISTS AND CHEMICAL/ 
BIOLOGICAL WEAPONS 

Elliott Hurwitz (May-Jun 1982) 427 



viii Contents 

CHAPTER 31— OFFSHORE MARITIME TERRORISM: 
INTERNATIONAL IMPLICATIONS AND THE 
LEGAL RESPONSE 

Christopher C. Joy tier Qu\- Aug 1983) 433 

CHAPTER 32— RESPONDING TO TERRORISM: 
WHAT, WHY AND WHEN? 

William R. Farrell Qan-Feb 1986) 449 

CHAPTER 33— AN APPRAISAL OF LAWFUL MILITARY 
RESPONSE TO STATE-SPONSORED TERRORISM 
James P. Terry (May-Jun 1986) 455 

PART FIVE— LAW OF WAR 465 

CHAPTER 34— THE 1977 PROTOCOLS TO THE GENEVA 
CONVENTION OF 1949 

W. Hays Parks (Fall 1978) 467 

CHAPTER 35— RULES OF ENGAGEMENT 

J. Ashley Roach (Jan-Feb 1983) 479 

CHAPTER 36— FALSE COLORS AND DUMMY SHIPS: 
THE USE OF RUSE IN NAVAL WARFARE 

Mary T. Hall (Summer 1989) 491 

CHAPTER 37— THE COMING EXPLOSION OF 
SILENT WEAPONS 

Stephen Rose (Summer 1989) 501 

CHAPTER 38— NEUTRALITY AND INTERNATIONAL ORDER 
Count Wilhelm Wachtmeister (Spring 1990) 523 

CHAPTER 39— THE ENVIRONMENT AND THE LAWS 
OF WAR: THE IMPACT OF DESERT STORM 
James P. Terry (Winter 1992) 533 

CHAPTER 40— THE OBLIGATION TO ACCEPT SURRENDER 
Horace B. Robertson, Jr. (Spring 1993) 541 

PART-SIX— OTHER LEGAL ISSUES 553 

CHAPTER 41— REASSESSING THE SECURITY ALLIANCE 
BETWEEN THE UNITED STATES AND JAPAN 

Roger D. Wiegley (Feb 1979) 555 



Contents ix 

CHAPTER 42— GREEKS BEARING GIFTS: IMPACT 
OF THE INF TREATY ON EUROPEAN SECURITY 

Graham Rhys-Jones (Winter 1989) 565 

CHAPTER 43— MILITARY-TO-MILITARY ARRANGEMENTS 
FOR THE PREVENTION OF U.S.-RUSSIAN CONFLICT 
John H. McNeill (Spring 1994) 575 

INDEX 



FOREWORD 

The International Law Studies "Blue Book" series was initiated by the Naval 
War College in 1901 to publish essays, treatises and articles that contribute to 
the broader understanding of international law. This, the sixty-eighth volume 
of the series, consists of writings on international law which have appeared in 
the Naval War College Review during the period 1978—1994. 

This compilation of articles, essays and reviews follows an earlier two-volume 
work published in 1980 which comprised readings appearing in the Review 
from 1947 to 1977. Those two volumes, 61 and 62 of this "Blue Book" series, 
were edited by Professor John Norton Moore (who had recently served as U.S. 
Ambassador to the Third United Nations Conference on the Law of the Sea) 
and Professor Richard Lillich (a former Charles H. Stockton Professor of 
International Law at the Naval War College), both of the University of Virginia 
School of Law. Professors Moore and Lillich compiled those readings in a cogent 
and readily accessible format for use by students and practitioners of international 
law. 

Volume 68 continues in that tradition, bringing together some of the best 
writings on international law from the Naval War College Review in the 
intervening seventeen years. Professor Moore again serves as coeditor for this 
volume and is once more joined in that effort by a University of Virginia 
colleague — Professor Robert F. Turner — also of the School of Law. Professor 
Turner occupied the Stockton Chair of International Law at the Naval War 
College during the 1994—95 academic year. 

The readings in Volume 68 reflect an era of profound change, both in 
international law and in the world community; and the important field of oceans 
law has perhaps typified that trend. Indeed, as the articles in Part Two will 
demonstrate, the clarification and codification of the law of the sea during this 
period has proceeded more rapidly than during any comparable period in history. 
Considerable progress has also been made in the struggle against terrorism, in 
the law of war, and in other areas addressed in the material which follows. 

The articles are conveniently arranged under general headings in six Parts 
(although several articles address more than one subject and have been assigned 
by our editors to the one thought most appropriate); and in order to give the 
reader a sense of the evolutionary process that has occurred in several of these 
areas, they are arranged chronologically within each Part. Particularly in the law 
of the sea area, some of the earlier articles may seem dated today — but they 
reflect important thinking that will be of interest to readers seeking to understand 
the profound geopolitical dynamics that have occasioned recent changes in the 
law. 



XII 

The Naval War College takes pride in its commitment to academic freedom. 
Writings that have appeared in the Naval War College Review and the "Blue 
Book" series hew to no official policy agenda. Indeed, the value of an article or 
essay may reside particularly in its articulation of positions quite at odds with the 
conventional wisdom. As a consequence, it should be understood that while the 
opinions expressed in this volume are those of the individual authors and not 
necessarily those of the United States Navy nor the Naval War College, they 
collectively provide a valuable contribution to the study of international law. 

On behalf of the Secretary of the Navy, the Chief of Naval Operations and 
Commandant of the Marine Corps, I extend to the editors and the contributing 
authors of this informative and provocative compilation our gratitude and 
thanks. 



James R. Stark 

Rear Admiral, U.S. Navy 

President, Naval War College 



PREFACE 

By coincidence, today marks the 110th anniversary of the beginning of the 
first class of students at the Naval War College in 1885. As the small group 
gathered in a structure originally designed to serve as Newport's poorhouse and 
"deaf and dumb asylum," lacking money — not only for books and furniture, but 
even for heat and light — Acting Rear Admiral Stephen B. Luce noted that the 
building would at least provide "shelter" and declared: "Poor little poorhouse, 
I christen thee the United States Naval War College." It was the austere 
beginning of something very important — an event of landmark significance for 
the profession of international law. 

The Naval War College's Contribution to International Law 

Rear Admiral Stark notes in his foreword that international law has long 
played a central role in the Naval War College curriculum. But, with charac- 
teristic modesty, he neglects to make the corollary observation that the Naval 
War College has played a very important role in the development both of 
substantive international law and the teaching thereof. From our perspective, 
such a conclusion is clearly warranted. Some brief history may be useful to 
illustrate that observation. 

Lacking funds in its infancy, the War College was dependent upon visiting 
lecturers who would volunteer to travel to Newport at their own expense to 
teach the first class of students. The first such lectures were by Professor James 
Soley — then the Librarian in the Department of the Navy, but soon to become 
Assistant Secretary of the Navy — who addressed the important topic of interna- 
tional law. 

According to the centennial history of the Naval War College, by 1894 the 
curriculum had expanded to include seven parts, the very first of which included 
"lectures on professional subjects, including international law." This series of 
twenty-two international law lectures was delivered by Professor Freeman 
Snow, of Harvard Law School, who brought with him the "case method" of 
study which he was helping to pioneer at Harvard at the time — an approach that 
was later to become a standard tool of legal education in America. 

When Professor Snow passed away during the 1894 War College term, Rear 
Admiral Henry C. Taylor entrusted Commander Charles H. Stockton with the 
task of editing and expanding Professor Snow's lectures into a text on interna- 
tional law. Published in 1895, it was to be the first of many War College books 
on the subject. Along with Professor Snow's 1893 Cases on International Law, 
the new War College volume provided an important teaching tool for law 
schools around the country. 



XIV 

In 1898, Stockton had risen to the rank of Captain and was named Naval 
War College President. The following year he was charged by the Secretary of 
the Navy with drafting a Code of the Law and Usages of War at Sea — a 
document that served as an early effort to codify the law of the sea. Captain 
Stockton represented the United States at the Hague Peace Conference of 1907, 
which played an important role in the development of conventional law 
governing armed conflict. 

In 1901 the study of international law at the Naval War College was under 
the direction of the legendary John Bassett Moore (no relation to the under- 
signed) of Columbia University, who went on to become a judge of the 
Permanent Court of International Justice and is viewed by many as perhaps the 
finest international lawyer ever produced by the United States. One of Professor 
Moore's many contributions was to initiate the series of "Blue Books," of which 
the present volume is the sixty-eighth. Moore was succeeded by Professor 
George Grafton Wilson, one of the co-founders of the American Society of 
International Law, who divided his efforts between teaching at the War College 
and at Brown (and later at Harvard) University. Under Professor Wilson's 
guidance, another 7,000-pages of "Blue Books" were produced by 1937. 

Another enhancement to the Naval War College's international law program 
occurred following World War I, when Admiral William B. Sims — an interna- 
tionally-acclaimed war hero who was expected to receive his choice of any senior 
position in the Navy — requested instead to return to the presidency of the War 
College. Because of his great prestige, Admiral Sims was able to secure increased 
funding to attract "leading authorities on international law" to the War College. 
Many of the nation's foremost scholars in the field were drawn to Newport 
during the years which followed, including Professor Manley O. Hudson of 
Harvard (who also served as a World Court judge). 

Up until that point, however, distinguished scholars like John Bassett Moore 
and Manley Hudson would divide their time between their War College 
responsibilities and teaching at leading universities in the region such as Harvard, 
Columbia, and Brown. In July, 1951, Professor Hudson was succeeded by 
Professor Hans Kelsen, of the University of California at Berkeley, who became 
the first full-time occupant of what in 1 967 was to become known as the Charles 
H. Stockton Chair of International Law. It remains the oldest and is widely 
viewed as the most prestigious chair at the Naval War College. 

While Admiral Stark is certainly correct in noting the importance placed on 
international law in the curriculum of the College, one can only add that during 
its proud history the Naval War College has attracted some of the Nation's 
foremost scholars of international law — and those of us in the profession today 
are deeply indebted to the Naval War College for the contributions its scholars 
have made over the years. To give just one contemporary example, The 
Commander's Handbook on the Law of Naval Operations (NWP 9), produced 



XV 

under the leadership of Professor Jack Grunawalt, Director of the Oceans Law 
and Policy Department, remains the seminal work on the subject and has been 
translated into several other languages for use by foreign navies. 

Today, there are more international lawyers assigned to the Naval War 
College than during any period in its history. In addition to the Stockton 
chairholder and Professor Grunawalt, the Oceans Law and Policy Department 
includes uniformed international/operational lawyers from the Navy, Army, 
Marine Corps and Coast Guard. An Air Force representative will join the 
Department next year. Still another full-time international lawyer is assigned to 
the Joint Military Operations Department, as the holder of the Howard S. Levie 
Chair of Operational Law. The Naval War College clearly remains committed 
to this distinguished tradition of furthering the teaching and development of 
international law, and we commend Admiral Stark and his colleagues for the 
College's many important contributions over the years. 

Readings from the Naval War College Review 

In 1948 the Naval War College began publishing the Naval War College 
Review as a forum for discussion of public policy matters of interest to the 
maritime services. The Review has provided yet another vehicle for the 
dissemination of information and ideas concerning international law. Indeed, 
over the years a number of landmark articles on the subject have appeared in 
the Review. 

In 1980, volumes 61 and 62 of the Blue Book series were devoted to Readings 
in International Law from the Naval War College Review 1947-1977. Edited 
by former Stockton chairholder (1968-69) Richard B. Lillich and John Norton 
Moore (one of the current editors), these two volumes compiled a wealth of 
valuable material on oceans law, the use of force, international human rights, 
and a number of other important topics. 

The present volume is a sequel to those Blue Books, bringing together under 
one cover the most important contributions on international law published in 
the Review between 1978 and 1994. It also includes one short monograph of 
particular importance that was originally published by the Naval War College 
as part of its "Newport Papers" series. 

The articles are organized chronologically under six headings. Part I addresses 
the role of law in the international system. We would in particular call the 
reader's attention to the contribution entitled "Contemporary International 
Law: Relevant to Today's World?," by Rear Admiral Horace B. Robertson, 
Jr., JAGC, USN (Ret.) from the Summer 1992 issue of the Review. After his 
retirement as Judge Advocate General of the Navy, Admiral Robertson distin- 
guished himself as an educator on the law faculty of Duke University. In 
1990-91, he occupied the Stockton Chair at the Naval War College. It should 



XVI 

be noted that Professor Alfred P. Rubin, of the Fletcher School of Law and 
Diplomacy at Tufts University, who has authored two articles to Part I, is also 
a former Stockton chairholder (1981-82). 

Part II brings together articles on oceans law, a field of obvious interest to the 
Naval War College. The period during which these articles were written was 
one of great transition in connection with the 1982 United Nations Convention 
on the Law of the Sea. Some of the articles written before the treaty was 
concluded may seem somewhat dated, but we have included them because they 
provided valuable insight into the important debates that produced the landmark 
treaty. This section concludes with Admiral Robertson's "Newport Paper," 
which provides a very useful overview of "The 'New' Law of the Sea and the 
Law of Armed Conflict at Sea." 

Part III examines "use of force" law (jus ad bellum), and focuses primarily upon 
a series of "case studies" ranging from Grenada and Libya to Panama. Of 
particular interest may be the contribution by former Secretary of the Navy 
James H. Webb, Jr., from the Winter 1988 issue of the Review, which, while 
not primarily a "legal" analysis, provides an interesting insight of senior service 
leadership on when and how force should be used combined with recollections 
of the frustrations faced by an Infantry officer in Vietnam in the 1960s. Originally 
delivered as a lecture to the War College's 1987 Current Strategy Forum, we 
thought the piece likely to be of sufficient interest to the international law 
community as to warrant inclusion despite its lack of "legal" focus. 

Part IV looks at terrorism. The eight articles making up this section could 
have been included in parts III or V, but given the interest in this problem 
reflected by the number of articles published on the subject in the Review, we 
thought it better to group them together. Particularly noteworthy, perhaps, in 
this section are the overview of United Nations efforts to respond effectively to 
international terrorism by the late Professor L.F.E. (Fred) Goldie, a former 
Stockton chairholder (1970-1971), and the concluding article on "An Appraisal 
of Lawful Military Response to State-Sponsored Terrorism," by Colonel James 
P. Terry, USMC — who retired earlier this year after serving three years as Legal 
Adviser to the Chairman of the Joint Chiefs of Staff. 

Part V consists of articles on the law of war (jus in bello) . It begins with an 
analysis of the 1977 Protocols to the 1949 Geneva Conventions written by W. 
Hays Parks, a former Stockton Professor (1984-1985), followed by an excellent 
discussion of rules of engagement by J. Ashley Roach (now with the Office of 
the Legal Adviser to the Department of State). This section concludes with a 
discussion of international environmental law and Operation Desert Storm by 
Colonel Terry, and a piece on "The Obligation to Accept Surrender" by 
Admiral Robertson. 

Finally, part VI collects three additional articles which we believed warranted 
inclusion in this volume but which did not fit conveniently under any of the 



xvii 

earlier headings. Two of these deal with treaty relationships — the U.S. -Japan 
alliance and the impact of the INF Treaty on European security. 

A concluding note may be in order. In writing the introduction to volume 
61 of the Blue Book series in March, 1979, one of us (Professor Moore) lamented 
that "international law frequendy is not significantly considered in key national 
security decision," noting that "[t]here continues to be no international legal 
expert as such on the NSC staff. ..." He had made this point writing earlier in 
the January 1973 issue of Foreign Affairs. We are pleased to note that consider- 
able progress has been made toward assuring that international and other legal 
issues will be considered at the highest levels of the policy process by the 
establishment in 1982 of a Legal Adviser on the National Security Council staff. 

If the recent past is any guide, the years ahead will produce still further 
advances and developments in international law; and many of these will be of 
great importance to the Naval War College and the military officer. For a period 
of nearly half-a-century, the Naval War College Review has made an invaluable 
contribution to the development and understanding of international law that has 
left all of us in its debt. We are honored to be able to bring some of these articles 
to a wider audience, and we look forward to a continuation of this tradition of 
excellence in the years ahead. 



John Norton Moore Robert F. Turner 



Charlottesville, Virginia 
4 September 1995 



Notes 

1. For an excellent hisotry of the War College, 5«JOHN B. HATTENDORF, B. MITCHELL SIMPSON, 
III, & JOHN R. WADLEIGH, SAILORS AND SCHOLARS: THE CENTENNIAL HISTORY OF THE U.S. 
NAVAL WAR COLLEGE (1984). 

2. Id. 



PART ONE 



THE ROLE OF LAW IN THE 
INTERNATIONAL SYSTEM 



Chapter 1 

Contemporary International Law: 
Relevant to Today's World?* 



Horace B. Robertson, Jr. 

To introduce the subject of international law to a readership made up in 
large part of U.S. armed forces officers, whose education, background, and 
training condition them to be skeptics and pragmatists, is a daunting task. I hope, 
however, in a brief space to convey at least that there is such a thing as 
international law and that it has some relevance not only to the ordering of our 
international system of sovereign nations but also to the decisions one may be 
called upon to make in positions of responsibility in the United States govern- 
ment. 

This overview addresses, first, the role of international law in today's interna- 
tional system; second, its nature, origins, sources, and functions; and finally, the 
current trends in international law (as I see them) and where they may lead us 
during the next few decades. 

In the latter section I shall briefly address the role of the United Nations in its 
peace-keeping function and the impact it has had on the law relating to the use 
of force. 

A Few Cautionary Statements 

One of the most distinguished American international law scholars of this 
century, Judge Richard R. Baxter (who before his untimely death was the 
American judge on the International Court of Justice), stated in a talk to the 
Naval War College while he was a Professor at Harvard Law School that 
"International law suffers both from its friends and enemies. Its enemies include 
the geopoliticians, who hear nothing but the surge and crash of great international 
forces; the Kennanites, who rebel against a 'legalistic' approach to international 
affairs; and the specialists in international relations, who, not knowing very much 
about the subject, lump international law, as conceived by Hugo Grotius, with 
the League of Nations, the United Nations, and the control of the white slave 
trade. The similarity between some of the friends of international law and most 
of its enemies is that they overstate the pretended case^or international law. It is 

* Reprinted from the Naval War College Review Summer 1992. 



4 Readings on International Law 

then all too easy to demonstrate that, despite the claims made for international 
law, the world is still in a deplorable state." 

The "enemies" have three basic criticisms: the lack of a central law-giving or 
legislative body, the lack of an independent third-party dispute-settlement 
mechanism, and the lack of effective sanctions against lawbreakers. 

Let us take a commonplace example to illustrate that these deficiencies need 
not hamstring the functioning of the system. Consider the simple act of mailing 
a letter from the United States to a foreign address. What makes such a transaction 
possible? Take, for example, the case of a letter from Newport, Rhode Island, 
addressed to a person in Geneva, Switzerland. It takes some fairly sophisticated 
procedures, involving the postal officials of at least two (and perhaps several more) 
countries, to get the letter to its destination. One buys a United States stamp 
from a U.S. post office and pays for it in U.S. currency. En route to Switzerland 
the letter may cross the territory of Canada, Great Britain, and France (and 
perhaps Belgium and Ireland as well). The postal authorities of some of these 
countries undoubtedly assist in speeding the letter on its way. Two questions 
arise: 

• What authority or arrangement permits the letter to cross borders of various 
countries? 

• Do the postal authorities of the other countries receive monetary reimbur- 
sement from our postmaster general for their help in delivering the letter from 
the United States? If so, how much? 

The answers are provided by international law — here in the form of a series of 
multilateral postal treaties setting up a Universal Postal Union and establishing 
detailed regulations governing international postal affairs. These treaties, to 
which some 170 nation-states are parties, were "legislated" in several interna- 
tional conferences. 

All very well, but what if one nation violates the treaty? There is no court 
with compulsory jurisdiction to adjudicate the matter and no sanctioning body 
to impose penalties. In fact, however, the Convention is almost universally 
observed — not out of fear of sanctions but because it is in the mutual interest of 
the parties to observe it. The "law" creates expectations among states as to how 
other States will behave. If a State repeatedly or continually fails to fulfill its 
obligations, other States will eventually terminate postal relations with it. 

To illustrate, take a second commonplace example, from domestic law: 
highway traffic rules. In the United States the law requires all vehicles to travel 
on the right-hand half of the road under ordinary circumstances. It imposes 
criminal penalties on those drivers who violate that law. But is it the fear of 
criminal penalties that causes us to stay to the right in the face of oncoming traffic? 
Obviously not. It is rather our expectation that approaching drivers will keep 
their vehicles to the right (as they also expect of us) and that we will be able to 
pass safely. Granted, there is a criminal penalty if one violates the law, but the 



Robertson 5 

principal motivating force behind obedience to it is the mutual well-being of the 
members of the society. The same is true among the members of the international 
society, the nation-states that make up the international community. Naval and 
aerial navigators know that there are similar binding traffic rules for ships and 
aircraft in both domestic and international waters and air space. 

At this point a skeptic might be tempted to object that though this may be 
true, we have used only everyday examples far from the central issues of 
international relations — issues of war and peace, survival of nations, protection 
of basic human rights, and so forth. Indeed, the ultimate objective of international 
law is to create an international order in which nations and peoples can live in 
peace and justice. Like domestic law, however, international law is still an 
imperfect system. To quote Judge Baxter again, "It is quite clear that man has 
not been able to legislate war and aggression into defeat or even into retreat, 
although the institutions which the international community has developed 
exercise some restraints on the use of force. [International] law cannot cope 
adequately with the need for peaceful change. If a nation needs more territory 
or larger markets, the law cannot provide them. It cannot make unhappy people 
happy; it cannot turn arid desert into a flowering paradise; it cannot bring 
international tranquility and understanding where discord reigned before. In- 
deed, it might be safe to say that international law has been most successful in 
dealing with minor matters and with slighter causes of international friction. 
Probably it shows a greater facility in preserving the status quo than in doing 
justice. 

This is not surprising. While we would hope that a perfect system of justice 
would deal with such matters and operate best in times of high tension or crisis, 
we can note that domestic systems suffer from the same imperfections. 

The Nature, Origins, and Sources 
of International Law 

Accepting for the moment the fact that there is a system called "international 
law" that functions in the international community (though admittedly in an 
incomplete and imperfect way), let us turn to a brief examination of its nature, 
origin, and sources. 

To this point we have not tried to define "international law." No single, simple 
definition is possible, but at the risk of oversimplification, let us state one as 
follows: "International law is that body of rules or norms that are considered 
legally binding by states in their intercourse with each other." Note several things 
about this definition: 

• It uses the phrase "rules or norms." In some cases the term "norms" is more 
appropriate than "rules," since the latter implies more specificity than in fact 
exists in many situations. 



6 Readings on International Law 

• These rules or norms are "legally binding." That is, States comply with them 
because they are legally obligated to do so, not because they want to or are merely 
morally obligated to do so. 

• They apply to States — that is, sovereign, independent States. Traditionally 
and historically these rules have not applied to individuals, or to corporations, or 
any institutions other than States. (As we shall see, however, the categories of 
persons and institutions that are governed by international law have been 
expanding. In some areas, international law can now be said to apply to persons 
and institutions as well as States.) 

Where Did This System Originate? To quote a distinguished former holder of 
the Stockton Chair of International Law at the Naval War College, Judge Manley 
O. Hudson of the World Court, "Our system of international law has been 
developed over a period of more than three centuries. It is distinctly Western 
and European in origin. In tracing its growth, we usually refer to the Spanish 
jurist-theologians of the sixteenth century, but we ascribe first place to Hugo 
Grotius whose great book on 'The Law of War and Peace* was first published 
in 1625. For a long period, international law was conceived to be not only 
European, but also Christian, and its application was limited to Christian States. 
In the course of the nineteenth century, however, we broke ourselves free from 
such limitations, and in the words of the World Court, the principles of 
international law 'are in force between all independent nations' and 'apply 
equally' to all of them." 

As we shall see, the fact that the roots of international law are European has 
created problems within recent decades as newly emerging nations assert that 
many principles of international law were proclaimed by European imperialist 
powers primarily for the purpose of keeping the colonial States in their state of 
subjugation. 

What Are Its Modern Sources? Since the subjects of international law are States, 
which are sovereign, independent, and equal, it is obvious that the law's ultimate 
source (practically as well as philosophically) must be the consent of the States 
to be governed by it. This consent may be found either in treaties to which a 
State is a party (that is, explicit consent) or in customary practices so general as to 
have become in effect obligatory (and to which a State, as a member of the 
community of nations, may therefore be said to have tacitly consented). 

In addition to these two primary sources of international law, the Statute of 
the International Court of Justice (itself a treaty) gives three secondary sources 
to which the Court may turn to determine the law. They are, first, the general 
principles of law recognized by civilized nations; second, j udicial decision; and third, 
the teachings of the most highly qualified publicists (scholars) of the various 
nations. Let us examine each of these sources, primary and secondary, in order. 



Robertson 7 

To make a loose analogy, treaties (or conventions, or compacts, or international 
agreements, by whatever name they are called) are the international counterpart 
of national legislation. Unlike national legislation, however, which binds even 
those who dissent from it, treaties are only binding on those States which consent 
to become parties to them. In this respect they are more like contracts than 
statutes. But there are some situations in which they may be regarded as binding 
on non-parties. For example, some parts of the United Nations Charter purport 
to bind non-parties, and some treaties are declarative of customary international 
law. The latter may be looked upon as evidence of the customary law and as 
therefore binding on non-parties as well as parties. 

In general, however, customary law is created by State practice. To be sure, 
many authorities argue that even long-continued and consistent practice does 
not alone create customary international law, but that something more is 
required: a State's belief that the practice is obligatory. Nonetheless, a long-con- 
tinued practice acquiesced in by other States may create customary international 
law irrespective of the intent of States that acquiesce. 

Customary international law results from a process in which one State makes 
a claim and another State accommodates it; if the process is repeated often 
enough, a customary rule is created. That is why, in international practice, we 
find frequent resort to "diplomatic protests"; they serve to keep claims by other 
States from ripening into legal rights. Paper protests, however, may not be 
sufficient to sustain a position in the face of long-continued practice to the 
contrary. This is the principle underlying the U.S. Navy's "Freedom of Naviga- 
tion" program, under which the Navy conducts routine air or sea operations 
(usually transits) through areas that a foreign State claims as territorial seas or 
exclusion zones but are not recognized as such by the United States government. 

Since customary international law is "unwritten," where do we find evidence 
of what it is? We look to diplomatic history, to collections of diplomatic 
documents, and to writings of scholars on these matters. 

The general principles of law recognized by civilized nations are recognized as a 
source of international law by the Statute of the International Court of Justice. 
The effect of this provision is to allow resort to national legal systems. This device 
is necessary because international law is not as complete and well-developed a 
body of law as that of most nations; use of these general principles permit the 
gaps in the international system to be filled by principles of law that have attained 
near universality in national legal systems — such principles as, for example, that 
one shall honor his contractual obligations, or that one should compensate for 
unjustified injury caused to another. In a recent decision, a United States court 
of appeals faced with a decision involving international law looked to the laws 
of a number of nations to aid its determination that torture of a citizen by 
governmental authorities was contrary to international law. 



8 Readings on International Law 

The most important judicial decisions are judgments of the International Court 
of Justice, sitting at The Hague, and its predecessor, the Permanent Court of 
International Justice. The decisions of arbitral tribunals also constitute judicial 
decisions in this sense, inasmuch as these bodies are in fact judicial institutions 
and render their decisions on the basis of law and not as attempted compromises 
of conflicting claims. In addition, the opinions of national courts on questions of 
international law are entitled to considerable weight, even though one might 
expect them to take a somewhat more one-sided view of the law than would a 
truly international tribunal. 

The teachings, or scholarly writings, of the most highly qualified publicists of 
the various nations perform a valuable service. Not only do they criticize and 
clarify ambiguities in the law, they also synthesize vast amounts of treaty law, 
State practice, and judicial decisions and reduce them to manageable proportions. 
However, one must exercise a degree of caution in using such material. Scholars 
may be subject to personal as well as national biases, and in their works it is often 
difficult to be sure whether they are talking about what the law ought to be or 
what it is. I personally prefer to consider this fifth "source" as not really a source 
at all but rather evidence of what the law is. 

Contemporary Trends in International Law 

With this much as background, let us now turn to some of the current 
developments and trends in international law. 

The Expanding "Reach" of International Law. Our definition of international 
law stated that it is a body of rules or norms governing the legal relationships 
between States. The emphasis on States as such is certainly consistent with the 
environment in which the body of rules originally developed. That world was 
made up of independent, equal, and sovereign States, the only actors in the 
international arena. In the international arena, unlike in domestic societies, 
individuals (unless representatives of States) had no role to play and no standing 
to assert a legal right. An individual obtained rights only derivatively, by virtue 
of the protection afforded him or her by nationality. 

As an example, one of the firmly established rules of international law is that 
an alien residing in a foreign State is entitled to the protection of the State where 
he or she resides. If that State fails to live up to its obligations (as, for example, 
by arbitrary seizure of property or imprisonment without a fair trial), then it has 
violated this international norm, and the State of nationality has a right to bring 
a claim for reparation. But it is the State, technically, that does so, not the 
individual; under the international legal system, it is the State of nationality that 
has been wronged, not the individual. Thus the State of nationality has absolute 



Robertson 9 

control over the claim, and it may if it chooses refuse to assert the claim, or dismiss 
it, or compromise it — all without the consent of the individual. 

One of the contemporary developments in international law is a gradual 
recognition that individuals themselves may, under certain circumstances, be 
"subjects'* of international law; that is, they may have rights (and obligations) 
flowing directly from international law and not merely derivatively from their 
State of nationality. This recognition probably began between the world wars 
with the establishment of the International Labor Organization and its constitu- 
tion, recognizing that working persons have certain minimum rights with respect 
to working conditions. The concept received a major thrust forward at the end 
of World War II with the adoption of the United Nations Charter and its 
emphasis on the rights of human beings. At the same time, the acceptance of the 
so-called Nuremberg principles recognized that individual Nazi leaders, not just 
the Nazi State, were criminally responsible for war crimes, crimes against 
humanity, and crimes against peace, and could be tried by an international 
tribunal convened by the allied States. The crimes for which they were tried, 
including atrocities against nationals of their own states, were considered to be 
international crimes. 

The ideas of individual rights under international law and of individual 
obligations flowing from it have developed gradually. The principal impetus has 
been the United Nations General Assembly — first in the Charter itself, then in 
the Universal Declaration of Human Rights of 1948, then in a series of treaties 
adopted over the past several decades. The latter included the Covenant on the 
Prevention and Punishment of the Crime of Genocide, the International 
Covenant on Civil and Political Rights, the International Covenant on 
Economic, Social, and Cultural Rights, the International Convention on the 
Elimination of All Forms of Racial Discriminations, as well as a number of 
regional conventions of similar content and intent. 

A corollary to this idea of individual rights under international law is the 
elimination of the view that how a State treats its own nationals is not an 
international concern but merely a domestic matter. As late as 1957, a preeminent 
international law scholar could write chillingly in a leading English treatise on 
international law that how a State treated its own nationals was a matter of 
"discretion." It is no longer possible to make this statement. A United States 
court of appeals has held, for example, that the torture of a Paraguayan citizen 
in Paraguay by an official of the Paraguayan government created a right of redress 
in the courts of the United States under a statute allowing such actions for 
violation of the "law of nations." 

Another aspect of the expanding reach of international law is the extension 
of international law to international bodies, such as the United Nations, the 
International Civil Aviation Organization, the European Community, the In- 
ternational Maritime Organization, and many others. For certain purposes these 



10 Readings on International Law 

institutions are regarded as international "persons," as are certain non- 
governmental organizations (commonly call NGOs). There is even some indica- 
tion that certain intergovernmental consortia and transnational corporations have 
some characteristics of international persons; this idea, however, is still in its 
infancy. 

The Codification of International Law. A second major trend in contemporary 
international law is codification, i.e., rendering unwritten law into formal written 
form. 

As noted, one of the two primary sources of international law is custom (the 
other being treaties). Customary law is just as valid and binding as treaty law, but 
it suffers from a number of difficulties and ambiguities. For one, customary 
practices are often difficult to prove. Also, is a practice, however uniform and 
long-standing, followed out of obligation (thereby becoming law) or merely from 
non-binding habit? Further, a general principle may be firmly established by 
custom, but the details of its contents may be incomplete or fuzzy around the 
fringes. Only a written treaty text can fill in the particulars. These issues have 
created an impetus to convert customary practices into treaties, thus making them 
explicit, stable, and definite obligations. 

This movement was given additional momentum by the creation by the 
United Nations, soon after its founding, of the International Law Commission. 
This Commission, which is made up of legal experts acting in their individual 
capacities and not as representatives of their States, has as its mission the 
codification and progressive development of international law. In the more than 
forty years of its existence it has prepared draft texts in a number of areas that 
previously had been governed only by customary international law. A number 
of these draft texts have been submitted to international conferences for negotia- 
tion as multilateral treaties, and many have entered into force. The four treaties 
on the law of the sea adopted in 1958 by the First Geneva Conference on the 
Law of the Sea are products of this process. Likewise, the Vienna Convention 
on the Law of Treaties, the Vienna Convention on Diplomatic Relations, the 
Vienna Convention on Consular Relations, and several others have resulted from 
the same approach. 

Codification has also proceeded in other ways. The United Nations Con- 
ference on the Law of the Sea, which adopted the 1982 U.N. Convention on 
the Law of the Sea — perhaps the most ambitious undertaking in codification and 
development of international law ever undertaken — did not originate with the 
International Law Commission. It resulted from a series of U.N. General 
Assembly resolutions creating a Seabed Committee that served as a preparatory 
committee for the Third United Nations Conference on the Law of the Sea. 

Another factor behind the movement toward codification is the desire of Latin 
American, African, and Asian States to have a voice in shaping international law. 



Robertson 11 

As stated earlier, international law is principally of European origin. The newly 
emerging States, mainly former African and Asian colonies of the European 
powers, have found it difficult to accept a system that they had no part in creating, 
and particularly one that, in the view of many of them, was shaped in such a way 
as to keep them in a position of inequality. They see the codification process as 
a means of influencing contemporary international law in a way more favorable 
to their interests. Newly emerging States have formed themselves into the 
so-called "Group of 77" (now with over a hundred members), which uses its 
large bloc-voting strength in the United Nations General Assembly and inter- 
national conferences to exercise enormous influence. 

The Institutionalization of International Law, A third current trend is the 
proliferation of intergovernmental (international) institutions. Not only are they 
instrumental in creating and implementing broad segments of international law, 
but also they have spawned a special body of international law — the law of 
international institutions. This consists of the constitutions and internal regula- 
tions of those bodies as well as of the treaties and agreements that provide the 
framework for their relations with host governments and with other States in 
whose territory they operate. 

The preeminent international institution, of course, is the United Nations. Its 
functions are so broad and the reach of its activities is so all-encompassing that a 
whole new body of international law has grown up around its practices and 
procedures. It is not, however, the only international institution that affects the 
growth of international law. A whole host of international organizations create 
their own bodies of specialized law. Some of these entities are functional, such 
as the International Maritime Organization (instrumental in developing interna- 
tional rules and regulations governing safety at sea, ship construction standards, 
and the protection of the marine environment from pollution from ships) and 
the International Civil Aviation Organization, which is even more pervasive 
within its functional field. 

Other international organizations are regional, such as the European Com- 
munity, established by the Treaty of Rome. The E.C. has its own legislative, 
executive, and judicial branches, which in some cases have the authority to 
override national decisions. The activities of this organization are so pervasive 
with respect to member States that some international scholars are beginning to 
wonder when it will have assumed so many aspects of Statehood that its members 
can no longer be considered States and the Community itself will have become 
one super-State. 

The Enforcement of International Law. At the outset we observed that one of 
the principal criticisms of international law is that there is no means of enforcing 
sanctions against those who breach it. Without retreating from the rejoinder 



12 Readings on International Law 

offered earlier — that for the most part international law is obeyed and that even 
in domestic legal systems the principal motivating force for obedience is not the 
fear of sanctions — we may note nevertheless that some small steps are being taken 
toward creating and making use both of third-party adjudicative mechanisms for 
international disputes and of means for enforcing their judgments. In so noting 
them I do not mean to overemphasize the role of third-party dispute settlement 
in the international arena, since the traditional methods of diplomatic negotia- 
tion, good offices, conciliation, and mediation remain the cornerstone of peaceful 
settlement of disputes between States. 

Nevertheless, the hope following World War I was that the newly created 
Permanent Court of International Justice would serve as a judicial forum to which 
States would take their international disputes. This, unfortunately, proved a false 
hope. In the entire life of that court and of its successor, the International Court 
of Justice, only a handful of cases has been submitted and most of these have 
involved matters of little consequence. The principal reason, of course, is that a 
nation cannot be brought before the court without its consent, and States are 
reluctant to submit matters of great national significance to third-party adjudica- 
tion. Additionally, proceedings before the Court are long and tedious, which is 
not very helpful when speedy resolution of a controversy is needed. The Court 
has recently revised its rules to make it somewhat easier for States to submit cases 
and receive relatively quick decisions. Whether as a result of this change or 
because of other factors, the Court now has on its docket a record number of 
cases awaiting decision. 

A number of initiatives have been taken in other areas to create mechanisms 
for peaceful settlement of disputes: 

• The European Community has a well-developed court system, whose 
decrees are enforced in the courts of member States. 

• The World Bank has negotiated a treaty providing a process for arbitration 
of international investment disputes. This treaty has gained wide acceptance and 
adherence both among capital-importing and capital-exporting States. A unique 
aspect of the treaty is that it elevates disputes between States and private investors 
(usually multinational corporations) to the international plane, giving the latter 
equal status with States before this international arbitral tribunal. In addition, its 
judgments are enforceable in the domestic courts of any States that are parties to 
the Convention. 

• The United Nations has sponsored a multilateral treaty that obligates 
member States to enforce other international arbitral awards in their domestic 
courts. This treaty has enabled some American foreign investors to enforce 
international arbitral awards against foreign States even when the State has refused 
to participate in the arbitration. 

• Some recent multilateral law-making treaties contain dispute settlement 
provisions. A leading example is the 1982 United Nations Convention on the 



Robertson 13 

Law of the Sea, which contains extensive provisions for compulsory conciliation, 
arbitration, or ultimately adjudication. This was a real breakthrough because it 
marked the first time that the Soviet Union was willing to accept any form of 
third-party dispute settlement. 

• Finally, there is the United Nations Security Council, which has the 
authority, if all other methods fail, to impose sanctions, including the use of armed 
force, on a wrong-doing State whose actions it believes constitute a threat to 
peace, a breach of peace, or an act of aggression. 

As all are aware, until recently effective action by the Security Council in such 
situations was prevented by the "veto" — that is, the requirement for unanimity 
among the five permanent members of the Council (China, France, the United 
Kingdom, the former U.S.S.R., and the United States). With recent events 
(including replacement of the Soviet Union by Russia) making unanimity 
possible under certain circumstances (as, for example, the recent Iraqi invasion 
of Kuwait), it is appropriate that we address the methods the Security Council 
may employ and the procedures it may follow in adopting them. We shall also 
examine a State's right of self-defense and how this doctrine fits in with any 
enforcement action that may be taken by the Security Council. A caveat is in 
order, however: the latter issue is a complicated subject and one about which 
there is great disagreement among international lawyers. In discussing it in this 
small space a great deal of over-simplification is necessary. 

Self-Defense and the Role of the 
United Nations Security Council 

The Security Council's principal powers with respect to the settlement of 
disputes and dealing with threats to peace are stated in Chapters VI and VII of 
the United Nations Charter. Chapter VI deals with the pacific settlement of 
disputes and empowers the Security Council to investigate any international 
dispute or "situation which might lead to friction or give rise to a dispute, in 
order to determine whether the continuance of the dispute or situation is likely 
to endanger the maintenance of international peace and security." It can do this 
either on its own initiative or at the request of one of the parties to the dispute. 
If it determines that a dispute or "situation" (as characterized above) exists, the 
Security Council may under Chapter VI recommend either a method of 
resolution or specific terms of settlement. 

Chapter VII comes into play only if the Security Council determines that 
there exists a threat to peace, a breach of the peace, or an act of aggression. If so, 
the Council may either make recommendations to the parties or take 
"measures ... to maintain or restore international peace and security." Such 
measures might not involve the use of armed force; such options include 
"complete or partial interruption of economic relations and of rail, sea, air, postal, 



14 Readings on International Law 

telegraphic, radio, and other means of communication, and the severance of 
diplomatic relations." If such non-forcible means are inadequate, the Council 
may "take such action by air, sea, or land forces as may be necessary to maintain 
or restore international peace and security." 

As originally envisaged by the Charter, armed action under the authority of 
the Security Council would be taken by national armed forces made available in 
advance to the Council. Overall direction of the employment of these forces was 
to have been exercised by a Military Staff Committee consisting of the chiefs of 
staff (or their representatives) of the armed forces of the five permanent members. 
Since this Military Staff Committee has never really functioned as intended, the 
Security Council has been forced to adopt ad hoc arrangements in the only two 
instances in which it has taken armed enforcement measures. In the Korean War, 
the United states was asked to designate a commander of U.N. forces. In 
Operations Desert Shield and Storm, the Security Council (in resolution 665) 
used the device of calling "upon those Member States cooperating with the 
government of Kuwait which are deploying maritime forces to the area" to use 
such measures as were necessary to enforce the maritime embargo previously 
declared by Resolution 661. The Council used the same approach when, in 
Resolution 678, it authorized offensive action against Iraq. There it authorized 
"Member States co-operating with the Government of Kuwait ... to use all 
necessary means to uphold and implement resolution 660 (1990) [the initial 
resolution calling on Iraq to withdraw from Kuwait] and all subsequent relevant 
resolutions and to restore international peace and security in the area." 

What we had then was less a dejure U.N. Security Council enforcement action 
than a Security Council imprimatur on a collective self-defense operation by 
States coming to the aid of Kuwait. If this interpretation is correct (and not all 
international lawyers would agree with it), then this brings into play Articles 2(4) 
and 51 of the United Nations Charter. 

Article 2, paragraph 4, provides that "All Members shall refrain in their 
international relations from the threat or use of force against the territorial 
integrity or political independence of any State, or in any other manner 
inconsistent with the Purposes of the United Nations." The most generally 
agreed exceptions to the prohibition on the use of force in Article 2(4) are actions 
authorized by or in implementation of a decision of the Security Council, 
humanitarian interventions for the rescue of nationals (a right disputed by some), 
and individual or collective self-defense. 

Self-defense is the subject of Article 51, which provides in part that "Nothing 
in the present Charter shall impair the inherent right of individual or collective 
self-defense if an armed attack occurs against a Member of the United Nations, 
until the Security Council has taken measures necessary to maintain international 
peace and security." The important concepts here are that: the right of self- 
defense is not created by the Charter but is inherent, a sovereign right of States, 



Robertson 15 

the right may be individual or collective; and armed attack must have occurred; 
and self-defense measures can continue only as long as the Security Council has 
not taken the action necessary to maintain peace and security. 

Let us briefly address each of these concepts. First, the "inherent right" is based 
on the fundamental principle that a State has a right of self-preservation. This 
right pre-existed the U.N. Charter, although the Charter may have put limits 
on how it may be exercised, it did not take away the right itself. Second, this 
provision recognizes that a State is not required to rely on its own resources alone 
in repelling an attack. It may call upon other States to come to its assistance to 
repel the attack and maintain or regain its security. Our own whole web of mutual 
security arrangements with other States is based on this principle. 

Third, the attack must "occur." This is perhaps the most controversial part of 
the article. Does it mean that the victim State must absorb the first blow before 
it can respond? If so, the right to respond would be an empty one; in this age of 
missiles and weapons of mass destruction, the first blow may be fatal. Neverthe- 
less, some respected authorities have argued for this position. Others have pointed 
out the unreality of such a position and have argued for the right of anticipatory 
self-defense, pre-emptive attack, or preventive war. This too has its dangers, 
perhaps inviting all manner of pre-emptive assaults on the mere suspicion of an 
intent to attack. There is a middle ground, espoused by, among others, an 
eminent Israeli publicist, Yoram Dinstein, who suggests that an attack "occurs" 
when one party "embarks upon an irreversible course of action, thereby crossing 
the Rubicon." He calls this type of self-defense "interceptive" rather than 
anticipatory or pre-emptive. Under his theory, the United States would have 
been properly exercising the right of self-defense had it detected and attacked 
the Japanese fleet en route to Pearl Harbor in December 1941. 

Fourth, when does the right to self-defense end? Does Article 51 mean that 
if the Security Council passes any resolution at all, the State or States exercising 
the right of self-defense must desist? As preposterous as this seems, some noted 
publicists have argued so. A more sensible interpretation is that the measures 
must be both "necessary" and "sufficient" to restore or maintain international 
security. Who then is to decide whether the measures are sufficient? Is it the 
Security Council itself, or the State that believes itself a victim of aggression? The 
Charter is silent. Most publicists argue for the Security Council, and I would 
agree, but only if the Security Council makes an explicit finding that the measures 
it has taken are sufficient to restore international peace and security and directs 
the State or States exercising the right of self-defense to desist from further armed 
action. Under the rule of unanimity of the five permanent members of the 
Security Council, the rights of a victim State would seem to be adequately 
protected by this interpretation. Under it, measures adopted by the Security 
Council and actions of States in the exercise of their rights of individual of 
collective self-defense can proceed concurrently, at least until the Security 



16 Readings on International Law 

Council passes a definitive resolution requiring hostilities to cease. That is the 
situation that existed in Operation Desert Storm. 

The International Court of Justice has recently addressed certain aspects of the 
right of individual and collective self-defense in the case of Nicaragua v. United 
States. 4 Some of the views expressed in the majority opinion take an extremely 
narrow approach to this right and have caused concern among some international 
lawyers who view the right as an important bulwark against aggression, par- 
ticularly in a situation in which the United Nations Security Council fails to take 
effective action to protect a victim State. Among the holdings of the Court that 
I find troubling are the following: 

• Although the term "armed attack" includes attacks by irregular forces or 
guerrillas from foreign territory under certain circumstances, the term does not 
include assistance to rebels in the form of weapons or logistic support. 

• The exercise of the right of "collective" self-defense depends upon a 
declaration by the victim State that it is the subject of an armed attack and an 
explicit request for help to the assisting State. An assisting State cannot make this 
determination on its own, even if it is a party to a treaty with the victim State 
containing a clause stating that an attack on one is an attack upon all. 

• Under Article 51 of the Charter, the failure by a State to report measures it 
is taking in self-defense to the Security Council contradicts that State's claim that 
it is exercising the right of collective self-defense. 

Although the judgments of the International Court of Justice are not binding 
precedents in the same way that our domestic court decisions create law to be 
applied in similar cases in the future, the Court is the most prestigious judicial 
body in the international system. Its statements will have persuasive effect in 
shaping the further development of the international law of self-defense. 

The period since World War II has seen greater growth and change in 
international law than in any comparable period of history. There were 
many stimuli for these changes — the total victory by Allied forces in World War 
II, the creation of the United Nations and the other organizations it spawned, 
the emergence of the Cold War, the decolonization movement of the 1960s and 
1970s, the recognition of the concept of internationally protected human rights, 
and many more. With the end of the Cold War, the breakup of the Soviet empire 
and the hoped-for emergence of democratic States in its place, the growth of the 
international environmental movement, and many other events we can not 
currently perceive, the next half-century will probably bring even more dramatic 
changes in international law. For like domestic law, international law is not a 
static body of rules but rather a living creature, continually forged and shaped to 
serve the needs of an international community that itself is constantly changing. 



Robertson 17 

Rear Admiral Robertson retired from the Navy in 1976 following an assignment as the Judge 
Advocate General of the Navy. He was serving as the Charles H. Stockton Professor of International 
Law at the Naval War College at the time this article was written. 



Notes 

1. Baxter, Introduction to International Law, in LlLLICH & MOORE, 61 U.S. NAVAL WAR COLLEGE 

International law studies, readings in international Law from the naval War 

COLLEGE REVIEW 1947-1977 at 1 (1980). 

2. Constitution of the Postal Universal Union with Final Protocol, Vienna, 1 January 1966, 16 UST 
1291, TIAS 5881, 611 UNTS 7. Additional Protocols were adopted in 1971, 1974, and 1984. 

3. Supra n. 1 . 

4. Hudson, Legal Foundations of International Relations, in LlLLICH & MOORE, 61 U.S. NAVAL WAR 
COLLEGE INTERNATIONAL LAW STUDIES, READINGS IN INTERNATIONAL LAW FROM THE NAVAL 
WAR COLLEGE REVIEW 1947-1977 at 57 (1980). 

5. Statute of the International Court of Justice, Article 38, San Francisco, 26 June 1945, 59 Stat. 1055, 
T.S. No. 933, 3 Bevans 1179. All members of the United Nations are automatically parties to the Statute of 
the Court. 

6. Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). 

7. LAUTERPACT, 1 OPPENHEIM'S INTERNATIONAL LAW 641 ( 8th ed. 1957). 

8. Supra n. 6. 

9. Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 
Washington, 18 March 1965, 17 UST 1270, TIAS 6090, 575 UNTS 159. 

10. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, 10 June 
1958, 21 UST 2517, TIAS 6997, 330 UNTS 3. This convention has over eighty parties. 

11. United Nations Convention on the Law of the Sea, U.N. Publication Sales No. E.83.V.5. As of the 
writing of this article in January 1992, fifty-one States had ratined. (The Convention has since then entered 
into force on 16 Nov 1994.) 

12. United Nations Charter, Article 27, San Francisco, 26 June 1945, 59 Stat. 1031, T.S. No. 993, 3 
Bevans 1153. 

13. DINSTEIN, WAR, AGGRESSION AND SELF-DEFENSE 179 (1988). 

14. Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United 
States of America) (Merits), l.C.J. Reports 1986, at 4 (reprinted in I.L.M. at 1023, Sept. 1986). 



Chapter 2 

Misconceptions of Law and 
Misguided Policy* 

Alfred P. Rubin 

I. Misconceptions of Law and Their Policy Effects 

While misconceptions regarding international law are as common as 
misconceptions regarding economics or military affairs, there seems to 
be a pervasive feeling at policy levels that the misconceptions regarding interna- 
tional law are somehow less important. Most international lawyers are familiar 
with the bemused greeting at cocktail parties, when a new acquaintance first 
hears of their specialty: "International law? There is no such thing, is there?" 
One professor, the holder of a famous old Chair at the University of Cambridge 
in England, habitually gave the reply: "You are quite right; there is no such thing. 
That is why I teach it at Cambridge." 

The implication that what is taught is somehow less important than what is 
done in "real life," and that famous old universities are the home of cranks and 
harmless theories, is so patently false that in the cocktail party game of one-up- 
manship this answer was always a winner. But in real life the downgrading of 
international law as a tool for action is not funny; it costs lives and fortunes. 

Two examples may help illustrate the point. On the operational level, the 
assumption that NATO bases in Turkey or some expanded staging area on the 
Persian Gulf could be used to project American or NATO force into the Persian 
Gulf or Iran in an emergency flies in the face of the legal restrictions on our base 
rights. It assumes those legal rights could somehow be interpreted loosely by the 
United States in a time of tension and that under severe strain the government 
of Turkey or the host Emirate in the Gulf area would agree that its interests lies 
in supporting the United States or NATO action. 

Nothing could be further from the truth. What we interpret loosely, they are 
likely to interpret restrictively; what we see as a quick reaction, they will see as 
an aggression against Muslim solidarity in an area in which they live and we are 
visitors. It is the technical terms of the base rights agreements that must mark the 
limit of American power projection possibilities in that area, not great plans laid 

* Reprinted from the Naval War College Review November-December 1982. 



20 Readings on International Law 

on the basis of military needs and capabilities that do not take account of likely 
arm's length host-country reactions. 

On another level, plans that envisage the use of nuclear weapons in cir- 
cumstances short of those in which suicide is a rational act seem to assume that 
that use is legal or, if illegal, not likely to raise significant political opposition. 
But it is already clear in the United States that there is opposition, and that the 
opposition is based at least in part on legal objections to the proposed uses. When 
town meetings in Vermont vote for a nuclear freeze, Senators from Vermont are 
concerned; when Senators from Vermont are concerned, entire congressional 
delegations from New England, the North Middle West, and the Northwest 
must be concerned. Have we forgotten that it was a congressional refusal to 
supply the money that forced us out of Indo-China and made intervention in 
Angola impossible? Are plans realistic when they disregard the apprehension of 
those on whose cooperation the realization of those plans depends? 

These examples are not hypothetical, they are real and in their way reflect the 
kinds of interests that must be of concern to lawyers and wise planners. There is 
no rational dispute about the importance of having general constituency support 
for operational plans that affect that constituency, and in the United States the 
constituency of the military is the entire U.S. population and many foreign 
countries. Thus, there can be no rational dispute between planners and lawyers, 
including international lawyers, who raise questions about foreign constituencies' 
and national constituencies' reactions to the implementation of various plans. 
Lawyers' objections reflect the crystallized experience of the society whose law 
is involved. That is a very good indication of the likely reactions of those affected 
by the realization of the plan. To fail to take account of lawyers' problems, then, 
is to fail to take account of a vital element of the real world; plans made in 
disregard of the real world are doomed to fail. 

I make these comments out of the deepest concern for U.S. national defense 
interests. The use of American bases in Thailand to support a strike against 
Kampuchea during the Mayagiiez crisis resulted in Thailand being forced by its 
own constituencies to speed the timetable for American withdrawal in the 
aftermath of Vietnam: The apparent misuse of the bases as the Thai interpreted 
the base rights agreements did not help any significant American interest, it hurt. 
Plans that might envisage manned bomber or low-flying missile transits of neutral 
territory en route to Soviet targets force neutrals to consider defending themselves 
from the American incursions into their territory, thus reducing the reliability of 
those plans as a deterrent to Soviet actions and as a credible threat, as well as 
forcing the neutrals involved to consider their broader relations with the United 
States in the light of what they must perceive as our threat to their neutrality. 
What a distorted position for the United States, the major upholder of national 
sovereignty and freedom of choice, to be in! 



Rubin 21 

And even with regard to our closest allies, plans lose touch with reality when 
they envisage the possible use of tactical nuclear weapons with the permission of 
the territorial sovereign, but disregard the possibility that the policies of free 
countries are subject to change at the whim of an electorate accustomed to open 
debate, and that have in their territories significant groups of political activists 
ready to sacrifice themselves for the principle of no nuclear weapons use. Is France 
the only country that can suddenly withdraw from NATO military cooperation 
agreements? Is the United States in the climatic days of the struggle over Vietnam 
the only country that can raise political activists able to elect representatives to 
positions where they can control the purse strings? 

It follows that the first, and most serious, misconception about international 
law is the misconception that it is a minor specialty of importance only to learning 
how to read treaties that don't count when real interests begin to play. No. The 
essence of international law as a consideration in high policy is its crystallization 
of the basic rules of society; the fact that it contains the constitutional rules by 
which international society lives. That constitution is written in documents of 
more or less persuasiveness and practices of more or less antiquity supporting a 
pattern of expectations on the basis of which statesmen and their constituents, 
real people, behave. It is closely comparable to the unwritten British constitution. 
Non-lawyers, or those lawyers who act as mere technicians of the law, may have 
trouble perceiving the strength of the web of law in which we are all enmeshed, 
but they are caught in it nonetheless, just as President Nixon was caught in the 
web of American Constitutional Law when he was forced to resign the Presiden- 
cy, not by policemen but by the political forces that came into play to enforce 
the law. His apparent failure to perceive that the process was essentially one of 
law enforcement did not save him; it removed him from reality and made his 
loss inevitable. 

The second misconception flows from this. International law is not a system 
that lacks enforcement. Most criminal law in the United States comes closer to 
fitting that description, since most criminals escape justice in the United States. 
On the contrary, international law is almost a self-enforcing system. But the 
enforcement process is political. It depends on the perceptions of States and 
individuals that the law is being violated and that it is in their interest to react to 
the violation. That perception is fairly high in some countries; not very high in 
the United States. Thus the moral prestige of some Scandinavian countries, 
Switzerland, and some others gives them a voice in international affairs far beyond 
their military and economic power. 

The United States, which habitually in recent years reacts as if the law did not 
exist, as if only power politics exists, seems to have lost moral power. The result 
is a loss of the ability to influence events. That loss is no longer compensated by 
our military and economic power relative to the rest of the world. Fortunately, 
the Soviet Union has been almost as blind to the importance of moral force as 



22 Readings on International Law 

we, and has lost prestige and the ability to influence events at about the same 
speed. Indeed, partly because their sensitivity to the law has been greater than 
ours from time to time, it has taken a few egregious violations of the law by the 
Soviet Union, like their invasion of Afghanistan, to even the balance of moral 
degradation, while our losses have in the main been achieved by many small 
increments through ignorance, without the open display of brutality. 
Examples unfortunately abound: 

• The major users of the Panama Canal watched with dismay as we yielded 
practical control of the Canal to a small country with no real national interests 
in nondiscriminatory use. We agreed to terms that would make us appear a 
Yankee aggressor if we ever have to intervene to secure to the British the rights 
of passage we had guaranteed them, and all third countries, in the Hay-Paun- 
cefote Treaty of 1901. 

• We yielded in principle on historic rights of straits passage at the start of the 
United Nations Law of the Sea Conference, regaining those rights through 
elaborate negotiations as if a concession by straits and archipelagic States and in 
terms that seem sufficiently clear only to those actually involved in the negotia- 
tions instead of withholding our concession in principle to the end. 

• By conceding that the activities of the Pueblo off North Korea would have 
been illegal if conducted within twelve miles of North Korean territory, and 
asserting the applicability of the 1958 Geneva Convention on the Territorial Sea 
and Contiguous Zone to the situation, we conceded a twelve-mile territorial sea 
in part through misunderstanding the law involved. 

• We lost freedom of scientific research at sea in part through failure to 
consider the legal consequences of the cover story we used in the Glomar 
Explorer's venture. 

• In 1976 we legislated against "sovereign immunity" in a way that could, if 
our own rules were applied against us, result in the arrest of a Navy ship in a 
foreign court at the demand of a foreign commercial tort or contract claimant. 

• We negotiated for some three months with Iran over the release of our 
hostages there after it became clear that Iran was willing to let them go, because 
our own Iranian assets freeze regulations made it impossible to return to the legal 
position that had existed before the seizure and we had destroyed the credibility 
of the United Nations and the International Court of Justice as third party 
mediators. 

The list is potentially endless. These losses are not negligible individually and 
are tragic taken together. And with regard to all listed here but the last, it is 
possible to suggest that a more alert eye to legal aspects of our national security 
interests by the Navy would have helped limit, if not entirely avoid, the losses. 

Even with regard to technicalities of the law of interest to the Navy, there are 
misconceptions that might have tragic consequences for individuals who should 
know better. I have heard one officer at the Naval War College remark that 



Rubin 23 

"Victors are never tried for war crimes, therefore it is much more important to 
win than to fight legally." Aside from the deeper personal questions about the 
sort of action that is a "war crime" and the sort of person who would knowingly 
commit an atrocity, on the most superficial level the statement is untrue. Victors* 
tribunals of the sort we set up in Nuremberg and Tokyo are the exception, not 
the rule; the normal enforcement of the laws of war is by each country's national 
tribunals and through the discipline of its own forces. What might be called a 
war crime in international correspondence is called murder or rape or some such 
under the national criminal law applied to military personnel to discharge the 
State's international obligation to seek out and punish those individuals who 
violate the laws and customs of war. Despite some notable lapses, the record of 
the United States in this is pretty good; and all countries suffer lapses in wartime. 
The famous trials are, in the main, show pieces for the edification of blood-thirsty 
constituents and where, as in the case of the Nuremberg tribunal, some of the 
decisions become landmarks of legal reasoning, they survive as politically influen- 
tial ideas despite the weaknesses of the legal process that produced them. Where 
history deals less kindly with the legal reasoning, they are suppressed in our 
memories or reinterpreted to change the facts to fit our self-image. 

In one sense, however, the assertion that victors are never tried is true. The 
"new" Nuremberg crimes involving planning "aggressive" war seem weakly 
based in tradition and legal logic despite the overblown rhetoric of the time. 
Only one defendant at Nuremberg was convicted of these "crimes" alone, 
Rudolph Hess; all the others convicted on this count were also convicted of 
traditional war crimes or their peacetime equivalent, "Crimes against humanity." 
The victors' tribunals may thus, to the degree they held to the traditional views 
of law, be seen as actually a political necessity with regard to countries, Germany 
and Japan, which had failed in their own international responsibility to seek out 
and punish "ordinary" war criminals. Insofar as they took offin a new direction, 
their precedent is unlikely to survive. 

Another common misconception is that as long as the other side is the 
aggressor there is no legal restraint in the law of self-defense. That is simply not 
true. The laws and customs of war do not saddle the victims of war with moral 
or any other responsibility for the acts of their governments; little Nazi or 
Communist babies are not legitimate targets of military operations no matter 
how vicious their governments. Indeed, it is one of the strange twists of mind 
that international lawyers worry about when we read of "hostage" proposals to 
destroy a Soviet city in retaliation for some act of the Soviet government 
elsewhere. The laws and customs of war do not permit the bombardment of 
undefended cities or the destruction of lives or property not related to military 
necessity. Those laws and customs codify the experience and conscience of 
mankind and to ignore that experience and conscience, or the documents, to 



24 Readings on International Law 

which the United States had pledged its honor, that contain the translation of 
these concepts into binding words is itself monstrous. 

These legal and moral conclusions are, of course, reflections of reality more 
than the "realism" of those who ignore them. Is there any deterrent in threatening 
to destroy a Soviet city whose support of the Soviet leadership is unimportant to 
that leadership? Is a demonstration of our own disregard of civilian casualties in 
the Soviet Union likely to encourage the Russian people to abandon the war 
effort and overthrow their government; or will it serve instead to unite them 
behind a leadership that purports to protect them from Americans who do not 
care about innocent lives? 

In fact, each side always regards itself as the defender against foreign aggres- 
sions; even the Nazis defined their own role as protecting ethnic Germans from 
various (nonexistent) ethnic threats. The law of war has been consciously 
designed to facilitate the return to peace, and by doing so has since at least 1863 
carefully avoided permitting combatants in a "just" cause legal advantages over 
combatants in an "unjust" cause. To the extent that spokesmen for various causes 
have tried to change this fundamental orientation of the law, they have either 
failed, or achieved verbal successes that have disappeared in the heat of later 
events. An example of this sort of thing is visible in the routine United Nations 
General Assembly condemnations of Israel for actions analogous to those which 
Syria takes in Lebanon and others take elsewhere without equivalent condem- 
nations. It is noteworthy that the polemics against Israel seem unconvincing, 
hysterical, and political rather than legal. The result has not been great pressure 
on Israel to mend its ways, but the political insulation of Israel and its disregard 
of the criticism. This is not a defeat for the law, but a victory for the law and a 
defeat for those who would twist its impartiality to omit momentary political 
purposes. 

II. The Problem of Bureaucracy and Non-Cures 

Once it is conceded that a stronger legal component is needed in defense 
policy from operations to the highest planning levels, the problem becomes one 
of implementation. The normal bureaucratic answer is simply to appoint a 
specialist in the needed specialty, and amend the job descriptions of those above 
him in the chain of decision to require them to take account of the new input. 
But in bureaucracies the job description does not reflect the expertise of the 
job-holder; rather the formal expertise of the job-holder is whatever it says in 
his job description. Thus a senior official wishing to avoid the kinds of considera- 
tions in policy that an international law expert would bring to his attention need 
merely appoint a technician or non-lawyer to the post, or a very junior person 
without experience in making his expertise felt in the bureaucratic mix. Thus, 
the normal paper solution is no solution. What is needed is a realization on the 



Rubin 25 

part of the highest officials that the expertise of an international lawyer capable 
of perceiving the system is vital to the proper discharge of their own functions. 

This problem is frequently encountered by international lawyers within the 
system by their senior decision makers constantly reminding them that the law 
is only one of many (implication: one very minor among many major) inputs to 
wise policy. The lawyer who takes his expertise seriously and feels his public 
responsibilities quickly learns to make his contribution a matter of written record, 
forcing the superior to face bureaucratic consequences if it is ignored and the 
policy made in disregard of the legal factors turns out badly. This does not increase 
the popularity of the lawyer, but if popularity were the game there would be no 
reason for the public to pay our salaries. 

The reasons why this sort of situation is especially tense for lawyers is difficult 
to unearth. My own speculation is that many policy makers and planners are 
frightened of the law because they do no understand it, and feel secure if they 
can assure themselves that it does not really matter. If they take it seriously and 
still don't understand it, they face the alternative of handing over too great a 
portion of decision-making to their lawyer, whose judgement as to the many 
other factors that must be reflected in wise policy may be faulty or ill-informed. 
The real cure is, of course, greater education and familiarity with international 
law by non-lawyers, who make policy, and the selection of legal advisers who 
can explain their views in terms comprehensible to an intelligent decision maker. 
That is what makes the problem so difficult. Lawyers who can explain their 
insights in simple language are as rare as economists who can — and just as 
important; decision makers who can open their minds to the subtleties of the 
law without losing touch with reality are even more rare than lawyers who can 
express themselves clearly. The worst resolution is the one so frequently 
attempted: The appointment of lawyers to policy positions. That "resolution" 
normally confuses the expertise of successful corporation or claims lawyers with 
the expertise of international lawyers, and gives to policy the all-or-nothing, 
episodic, crisis-management approaches that lawyers are accustomed to, in place 
of the measure-of-risk, continuing-relationship approaches that wise policy 
demands. 

The problem is probably unsolvable; it is a problem that affects the entire 
bureaucracy, not merely the military portion of it or that part that involves 
lawyers. But to recognize it is already to alleviate it. It is possible that nothing 
more can be done. If that is so, it places a great burden on lawyers in positions 
to affect policy to press their views with the same vigor that economists and 
military specialists press theirs. It also places a great burden on policy makers to 
seek out legal opinions on all matters, and to decide on the weight to be given 
the legal input only after the best available input has been received and explained. 
Failure to shoulder those burdens can involve failure to discharge our public 
duty. 



26 Readings on International Law 

HI. The Link with Reality; United States Policy and the Falklands/Malvinas 
Islands Dispute 

By now the military outcome of the confrontation between the United 
Kingdom and Argentina over the Falkland/Malvinas Islands has long been clear. 
Now it is time to begin the sort of detailed analysis of the miscalculations and 
successes of each actor in the international arena that will surely fill the 
professional journals of many specialties in the months to come. The outline of 
the legal problems is already clear. It differs so radically from the popular 
impressions that it may be useful to set some ideas forward as illustrative of the 
uses of the law in decision-making. 

The pre- 19th century bases for British and Argentine claims to the islands 
interlock in a pattern that gives neither side much of an advantage over the 
other. 

Obviously, Papal donations and treaties among Spain, Portugal, and France 
are not significant to defeating any British claim; nor are British discoveries and 
self-serving assertions a significant obstacle to Spanish claims resting on their own 
assertions of right. A British occupation begun in 1766 was followed by a British 
abandonment in 1774. The British considered their abandonment of 1774 did 
not end the underlying British claim, only the open display of it. The British do 
not seem to have protested the Spanish settlement there, which began in 1764 
and was abandoned in 1811. At the time Argentina achieved its independence 
from Spain in 1816, it could say it had inherited a Spanish claim not translated 
into a form that would withstand a British counterclaim; and Great Britain had 
maintained a claim that could not withstand an Argentine action to consolidate 
its adverse claim. The law cannot resolve such situations to anybody's satisfaction. 
An arbitrary determination that the party with the slightly better claim (51 
percent) gets all of the prerequisites of the sovereign (100 percent) and the part 
with the slightly less persuasive argument gets nothing, is not a reflection of the 
real world. The wise policy maker would be advised of this legal situation and 
avoid judicial resolutions or too loud assertions of either country's supposed 
rights. 

In 1823, Argentina assumed full control of the Islands and in 1826 installed 
an effective administration. In 1830 the United States was opposed to any 
effective government in the Islands. American fishing and whaling interests, and 
others, apparendy wanted anarchy there. In 1831 an American naval expedition 
ousted the Argentine administration. Argentine protests were rejected. In 1833 
a British administration was installed, which the United States did not protest 
despite the opposition to European colonies in the Western Hemisphere made 
formal American policy in the Monroe Doctrine of 1 823 and loudly reiterated 
ever since. Argentine protests were rejected again. The Argentine national sense 
of grievance against both the United States and Great Britain thus has strong 
roots. 



Rubin 27 

Argentina never made any secret of its national determination to get the Islands 
"back" and to right the "wrong" of 1831-1833. There was never the acquies- 
cence impliable by silence that enabled various international tribunals to resolve 
similar disputes among other countries; neither was there an Argentine failure 
to perfect its claim before the critical date of 1833; nor was there an incorpora- 
tion of the territory into a stable allocation of sovereign rights that could be 
accepted by all parties. On the other hand, over the years after 1833 the British 
did maintain a stable administration supported by the fleet, and did bring the 
Islands into the world economy by establishing a productive colony. 

By 1945 it seems likely that the British could have maintained the stronger 
case before a tribunal, but the British case did not address the issues on the basis 
of which Argentine national feelings festered. To Argentina, the British con- 
solidations of its legal position seemed to pile insult and injury on top of the insult 
and injury suffered in the 1830s. 

At this point a wise lawyer and policy maker would pause and the policy maker 
would likely determine that the paths of the law would be too all-or-or-noth- 
ing-ish for reality; that some sort of purchase-and-sale agreement would be 
useful; and that the Argentine sense of grievance and British sense of propriety 
were both so well-based that a moment of sanity should be seized if ever it 
appeared that a formal settlement was possible. But it did not happen. 

In 1 945, at the close of a war in which Britain fought for its life while Argentina 
tried to avoid entanglement, the states of the world, including both Great Britain 
and Argentina, decided that it was time to change the rules of the game. They 
negotiated the United Nations Charter as a treaty, and formally agreed to abide 
by its terms. Among those terms was article 2(3), which provides that "All 
Members shall settle their international disputes by peaceful means in such a 
manner that international peace and security, and justice, are not endangered." 
There is no exception for preexisting claims, to permit wars as before when the 
quarrel has ancient roots. Indeed, such an idea seems wholly out of keeping with 
the open intention of the framers of the Charter. Nor is there any indication that 
the framers intended to eviscerate their handiwork by inserting the words "and 
justice." In accordance with the normal rules of international law, such words 
are interpreted not by each party with effects valid against all the others, which 
is a prescription for conflict; such words are interpreted by the collectivity in 
accordance with their more natural apparent intendment: To forbid the use of 
force in those cases in which "justice" is endangered by that use, even if that use 
is so small in scale and short-lived that international peace and security are not 
threatened by it. It was aimed at forbidding such foreseeable strikes as Israel's 
against the Osirak reactor in Iraq (to the extent that strike was not justifiable in 
self-defense under other of the Charter's provisions), not to justify the use of 
force. 



28 Readings on International Law 

Argentina, whose international lawyers stand among the most sophisticated 
in the world, knew of this interpretation and never indicated any dissent from 
it. Under normal international law rules of treaty interpretation they are not 
excused from the generally accepted interpretation of a treaty's terms by some 
secret and strained interpretation which their ingenuity might devise for their 
own purposes. 

An international lawyer pausing at this point would advise his policy maker 
that Argentina had formally renounced the use of force to "liberate" the 
Falkland/Malvinas Islands and to right ancient wrongs, but would remain free 
to use other tools. If the other tools proved ineffective, the solution of the tensions 
would have to await a calmer day. The world is filled with such situations. 

The United Nations Charter also contains a provision binding as a treaty on 
both Argentina and Great Britain that requires that the interests of the inhabitants 
of any non-self-governing territory be taken into consideration, including their 
political, economic, social, and educational advancement. Thus, even if the 
Argentine claim to the Islands were entirely valid, a substantial legal question 
would exist as to the degree to which Argentina could maintain any garrison or 
system of law in the Islands which would inhibit the population, however it got 
there, in expressing its own desires for its own future, even if that future involved 
a separation from Argentina and a joining with Great Britain. A solution to the 
Argentine grievances which did not take account of the wishes of the inhabitants 
of the Islands would place Argentina, and possibly even Great Britain if it agreed 
to such a solution, in apparent violation of this treaty commitment. The fact that 
those inhabitants or their ancestors came to the Islands as a result of British 
aggression in 1833, if that is the case, seems legally irrelevant to the humane 
concern for them as human beings with an interest in their own governance and 
well-being. It is this provision which is central to the anticolonial arguments in 
the United Nations regarding the well-being of the ethnic African and Indian 
majority in South Africa regardless of the prior establishment of Dutch rule there 
and the evolution of that rule into the current government of South Africa. 

In light of these legal considerations, and regardless of whatever negotiations 
might have gone on between 1945 and 1982 between Argentina and Great 
Britain, the Argentine use of force to oust the British garrison in April 1982, and 
the Argentine disregard of the wishes of the inhabitants of the Islands; place 
Argentina squarely in the position of violating its treaty commitments not only 
to Great Britain but to the entire world that accepts the United Nations Charter 
as the basis for the current international legal order. 

Nothing in the Charter or defense treaties related to the Organization of 
American States detracts from these provisions. 

From this point of view, the Argentine military action of April 1982 was a 
matter of interest to the entire world; it threatened the integrity of the treaties 
on which we all rely for such stability as exists in the world today. The fact that 



Rubin 29 

other States may have violated their commitments under the United Nations 
Charter is legally irrelevant, just as the fact that the criminal law is flouted in 
many major cities of the United States is irrelevant to the trial of an accused 
criminal. For the same reasons we insist on the integrity of the criminal law 
regardless of its violations by others, it is in the interest of the world to insist on 
the integrity of the United Nations Charter. 

The British reaction to the Argentine use of force was entirely consistent with 
this analysis. An appeal was made immediately to the Security Council of the 
United Nations, which responded with a formal Resolution demanding that 
Argentina withdraw. The only State voting against the Resolution was Panama, 
an ironic vote in view of the importance of maintaining the continued legal effect 
of the essay in imperial adventure by the United States in 1903 on which Panama 
relies for its independence from Colombia. 

Instead of immediately acting in support of the United Nations Charter and 
the integrity of Latin American borders through the Organization of American 
States, the United States took the formal position that it was the friend of both 
parties. This choice, to accept the confrontational mode adopted by Argentina 
in its search for "justice" as defined by itself in disregard of its treaties, and to 
regard the struggle as one between two states only instead of it being Argentina 
against the world, seems unaccountable. It could not have been taken by a policy 
maker alert to the legal implications of the situation. 

The result of this choice in the real world was a confusion of major 
proportions. When ultimately the United States expressly supported the British 
counteraction in the name of the integrity of the United Nations system, it was 
too late to convince our Latin American neighbors, who are all well aware of 
the role of the United States in the transaction of 1831-1833, that we were not 
acting in support of an old and trusted ally against a Latin American state seeking 
"justice." Our position was made to appear politically expedient, not a matter 
of principle. The repercussion on our Latin American policy and on the United 
Nations and Organization of American States system will be immense, and it is 
hard to see how the long-range interests of the United States are served. 

Other implications, obvious to international lawyers but apparently over- 
looked by policy makers, included the confusion between support of British 
military action in support of principle and treaty commitments with support of 
British claims to sovereignty in the Falklands/Malvinas Islands. While the British 
might have had a stronger legal claim to sovereignty than Argentina, as noted 
above a legal approach is not compelled by the law or appropriate to the true 
situation. In the absence of detailed argumentation presented by both sides and 
evaluated calmly, it was not only beyond the practical capacity of the United 
States to determine which claim is the stronger, but whatever our conclusion it 
must have been legally unpersuasive to the other side and its allies and might 
have inhibited the sort of negotiation needed to end the confrontation. And for 



30 Readings on International Law 

the United States to appear to oppose our Latin American neighbors or our 
British allies in this was unnecessary and destabilizing to both NATO and Latin 
America. Thus a narrow legal memorandum that did not focus on the entire 
legal order was distorting. A policy maker would have been better off knowing 
no law than that isolated bit of it. 

The importance of a full legal evaluation of the entire situation was also evident 
in considering the degree of support the United States should have been giving 
to Great Britain. It follows from the analysis above that the British response to 
the Argentine taking of the Falkland/Malvinas Islands was a response to an illegal 
Argentine action that directly affected British interests. The British undoubtedly 
had "standing" to act; they were not acting as world policemen to support the 
law, as we would have been if we were to have acted directly against Argentina, 
but as a party injured by the Argentine action. The British position was not one 
of "self-defense." To call it self-defense implies British sovereignty in the Islands; 
otherwise the Islands could not be part of the "self' the British are defending. 
"Self-defense" also assumed an immediacy that became less and less evident as 
time went on. 

The British rationale, carefully preserved in Prime Minister Thatcher's public 
statements, was the need of states with the legal standing to act to preserve the 
system. That was the American rationale in Korea in 1950 also. We were bound 
to support the British action because we were and are bound to support the 
integrity of the system. Thus, to the degree the British action exceeded what is 
justifiable in support of the collective security system set up in the Charter, our 
support for it must have been very questionable. It could be given as a matter of 
policy, but should not have been given unless its legal implications were 
understood. 

It is this restriction on British legal rights that made the British sinking of the 
Argentine cruiser General Belgrano early in May outside the zone proclaimed by 
the British as the "exclusion" zone for Argentine ships so significant. Despite 
British arguments that they could have made the zone larger, that the declaration 
did not limit British rights to strike at Argentine vessels elsewhere, and that the 
sinking was necessary in self-defense of the British forces within the zone, the 
expansion of the zone of combat beyond what was clearly necessary to counter 
only the Argentine taking of the Falkland/Malvinas Islands undercut the world 
order rationale for the British action. These doubts were reflected in the world's 
reaction to the British sinking; the pulling back of the European Economic 
Community partners from further support of the British embargo of Argentina 
and the estrangement of those Latin American countries that might have more 
vigorously supported the system if convinced that it was the system they were 
supporting and not British colonial interests. 

To consider these important hesitations merely a triumph of petty self-interest 
by European and Latin American States over the interests of stability is to ignore 



Rubin 31 

the common interest of all in the integrity of the system and help to destroy it. 
If it is in America's interest to support the system and to find a common language 
with which to discuss it with the other states interested, we must be aware of it 
and the limits it places on British action. Even if others are less convinced than 
we of the virtues of stability and collective enforcement of the law through 
political and military pressures, it is difficult to see how we can convince them 
of their ultimate interest if we lose sight of it ourselves. That would leave the 
field open to Soviet and other spokesmen to undermine the very basis of the 
interest structure on which we rely, much more than our overt alliances, to 
oppose the destabilizing actions of the Soviet Union and various revolutionary 
groups that seize on national grievances to support local movements seeking to 
identify their particular local aims with xenophobic anti- Americanism. 

In sum, the world is a subtle and complicated place in which the tools of 
international law provide a framework for helping to evaluate national interest 
that can substantially change the policy evaluations of decision makers to the 
long-range favor of the United States. Failure to use those tools places us in a 
simpler world in which our leadership position is threatened by the mispercep- 
tions of others. If we suffer the same misperceptions we seriously undercut our 
ability to influence events and we bring the horrors of war and economic 
dislocation closer. And we fail in our duty to help safeguard the national security 
of the United States. 



Professor Rubin was serving as the Charles H. Stockton Professor of International Law at the 
Naval War College when this article was first published. 



Notes 

1. Rand Corp., The International Law of Armed Conflict: Implication for the Concept of Assured Destruction 
(R-2804-FF January 1982). 

2. Rubin, The Panama Canal Treaties: Locks on the Bam Door, 1981 Y.B. World Aff. 181. 

3. Reisman, The Regime of Straits and National Security: An Appraisal of International Law Making, Am. J. 
Int'l L. 18 (January 1980). 

4. Rubin, Some Legal Implications of the Pueblo Incident, Int'l & Comp L.Q. 961 October 1969). 

5. Rubin, Sunken Soviet Submarines and Central Intelligence; Laws of Property and the Agency, Am. Int'l L. 
855 (October 1975). 

6. The Foreign Sovereign Immunities Act of 1976, U.S.C §§1330, 1602, provide that a foreign State 
shall not be immune from the jurisdiction of courts of the United States in any case in which the action is based 
on "an act outside the territory of the United States in connection with a commercial activity of the foreign 
State elsewhere and that act causes a direct effect in the United States" (28 U.S.C. §1605 a (2)). It also provides 
that a foreign State shall not be immune "in any case in which a suit in admiralty is brought to enforce a 
maritime lien against a vessel or cargo of the foreign State, which maritime lien is based upon a commercial 
activity of the foreign State" (28 U.S.C. §1605b). "Commercial activity" is defined in the Act to include "a 
particular commercial transaction" and says further that "The commercial character of an activity shall be 
determined by reference to the nature of the . . . particular transaction or act, rather than by reference to its 
purpose" (28 U.S.C.§1603A(d)). Legal questions of interpretation are only now beginning to make their way 
to the Supreme Court. But foreign governments in their own courts are not bound to hold to American 
interpretations of an American statute. We have probably lost our ability to protest effectively a foreign arrest 
of an American Navy vessel in Admiralty under a lien alleged to have been created in a dispute arising out of 



32 Readings on International Law 

the purchase of, for example, ships stores; we lost when the principle was breached of according sovereign 
immunity for the acts of direct agents of the sovereign whose sole source of funding is the public purse. Perhaps 
it was inevitable in light of the difficulties in law in distinguishing between a private corporation, which is, 
after all, merely a creature of the law and thus an extrusion of the State, and a direct government activity 
operating under statutes and accountability procedures almost as effectively cutting it off from political control 
in its procurement and sales operations. The legal distinctions are too complex to reduce to a simple principle 
universally applicable. But there is very little evidence that the problem was even perceived as serious when 
the statute was drafted. 

7. Rubin, The Hostages Incident: The United States and Iran, 1982 Y.B. World Aft*. 213. 

8. Many more dismal examples are given in FISHER, POINTS OF CHOICE (1978). 

9. TAYLOR, A TRIAL OF GENERALS (1981), for what seems an overly "revisionist" view. Generals 
Homma and Yamashita were convicted by American military commissions for not restraining the troops under 
their command during the Bataan Death March in 1942 and the destruction of Manila in 1945. The impact 
of these convictions on the law is not entirely clear. 

10. It may be hoped that the United States will never fail in its international responsibility in the same 
way. But it is possible to speculate in the light of opinions expressed from time to time that President Truman 
might have been guilty of an "ordinary war crime" in ordering at least the second nuclear bomb to be dropped 
in Japan in 1945. It is likely that a Japanese court would have held so. But whether an impartial tribunal correctly 
evaluating the legal situation in 1945 would have agreed is doubtful. See Falk, 77k? Shimoda Case: A Legal 
Appraisal of the Atomic Attacks upon Hiroshima and Nagasaki, 59 Am. J. Int'l L. 759 (1965); Rubin, The Neutron 
Bomb Again, 21 Va. J. Int'l L. 805 (1981), and works cited there. 

11. General Order 100 of 24 April 1863, Instructions for the Government of Armies of the United States 
in the Field (the Lieber Code), art. 29. 

12. This is not to say that all lawyers are poor at policy-making or all non-lawyers avoid the pitfalls. Harold 
Nicolson, while warning against "missionaries, fanatics and lawyers," specifically exempts international law 
experts from his fist. NICOLSON, DIPLOMACY 16-17, 24 (1963). Nicolson, a non-lawyer, also writes: "My 
own practical experience, and the years of study which I have devoted to this subject, have left me with the 
profound conviction that •moral' diplomacy is ultimately the most effective, and that 'immoral* diplomacy 
defeats its own purposes," p. 23. 

13. The only known scholarly book giving what appears to be an unbiased and more or less complete 
history is GOEBEL, THE STRUGGLE OVER THE FALKLAND ISLANDS (1971). 

14. Cf The Island o/Palmas (Miangas) Arbitration, 2 R.I.A.A., 829 (1929). 

15. Cf. The Clipperton Island Arbitration, 2 R.I.A.A. 1109 (1931). 

16. The Ecrehos and Minquiers Case, United Kingdom v. France, 1953 I.C.J. 47. 

17. The Charter is explicit on this: "Members of the United Nations which have . . . responsibilities for 
the administration of territories whose peoples have not yet attained a full measure of self-government recognize 
the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust 
the obligation ... to ensure . . . their political, economic, social and educational advancement. . . ." U.N. 
Charter art. 73. 

18. The classical legal formulation regarding "self-defense" first uttered by Daniel Webster when Secretary 
of State in 1842, deals with situations where the necessity for action is "instant, overwhelming, and leaving no 
choice of means, and no moment for deliberation." MOORE, DIGEST OF INTERNATIONAL LAW 414 (1906); 
Jennings, The Caroline and Macleod Cases, 32 Am. J. Int'l L. 82 (1938). It is difficult to see how that situation 
obtained in the Falklands/Malvinas Islands after the Argentine forces had removed the British garrison and all 
shooting had stopped in the Islands. "National security" as a concept would justify anything anywhere. Its 
meaning is solely political; it justifies nothing in international law because it would justify all counteractions to 
the very action it purports to justify. It would also justify executive counteractions, and then the counteractions 
to those counteractions, and so on ad infinitum. The use of the phrase by non-lawyers, and occasionally by 
adversary-minded lawyers, sometimes approaches silliness. 



Chapter 3 

Rules of Thumb for Gut Decisions: 
International Law in Emergencies* 

Alfred P. Rubin 



In my personal library there is a rather tattered and stained, leather-bound book 
published in 1741 by the British Admiralty and issued to Navy commanders. 
It is titled, Extracts from the Several Treaties Subsisting Between Great Britain and Other 
Kingdoms and States of such Articles and Clauses as Relate to the Duty and Conduct of 
the Commanders of the King of Great Britain's Ships of War. It is 264 pages long and 
contains in elegant print the pertinent articles of all the treaties with France, Spain, 
the Netherlands, Belgium (then called the Austrian Netherlands), Portugal, 
Russia, Sweden, Denmark, Savoy (now expanded to a united Italy), Turkey, 
Morocco, Algiers, Tripoli (now called Libya), and Tunis. The oldest is with the 
Austrian Netherlands, and dates to 1495. The compilation is current as of 1741. 
Some of the articles deal with the rights of merchants as neutrals when the other 
treaty party is exercising belligerent rights, such as blockade, against a third State, 
some with the incidents of peaceful seaborne trade, some with belligerent rights 
as between the treaty partners themselves, such as provisions dealing with 
contraband and prize court proceedings. Such a compilation was not only useful 
but a practical necessity in 1741 if Great Britain were to give her navy the job 
of protecting British commerce at sea. 

It would be both undesirable and impossible to compose an equivalent 
compilation for our naval commanders today. It is impossible to furnish our naval 
commanders with the compilation of all the treaty articles that might pertain to 
their duties because of the growth of the international community and the 
proliferation of treaties and executive agreements pertinent to seaborne com- 
merce and the laws of war, and other matters of possible immediate concern to 
naval commanders, like individuals* rights to political asylum. To serve a function 
equivalent to the 1741 compilation a current volume would have to be huge, 
cross-indexed, and accompanied by interpretive legal memoranda and 
philosophical analyses of the impact of treaty commitments on third parties, the 
implication of inconsistent obligations owed to the same party, different parties, 
international organizations, and parties with reservations or qualifying interpreta- 
tions to multilate ral documents. And it would quickly be realized by the naval 

* Reprinted from the Naval War College Review March-April 1982. 



34 Readings on International Law 

commanders that this set of volumes (which is what it would turn out to be) 
would be incomprehensible without more study than time and energy would 
permit. Besides, it would probably be useless in an emergency not squarely 
envisaged in some pertinent treaty. Since emergencies are never squarely en- 
visaged, since it is never clear that any particular treaty is pertinent to the exclusion 
of others, and since questions of interpretation arise over the simplest legal 
language, a modern compilation could not serve the function of the 1741 
compilation. 

It would also be undesirable. It is no longer true that the rules of international 
law are codified in documents that make sense to an intelligent and experienced 
person who has not devoted considerable time and effort to their study. Scan 
simply the 1958 Geneva Convention on the High Seas and consider that any 
American compilation like the 1741 book would not include the current version 
of the draft Convention of the Third United Nations Conference on the Law 
of the Sea (UNCLOS III) because that draft is not yet (and, indeed, may never 
be) a treaty ratified by the United States. But to conclude from that fact that the 
rules of 1958 still bind the United States and the flag States of all the other parties' 
vessels our Navy ships might encounter on the high seas would be totally wrong. 
The new draft embodies practices and interpretations accepted as proper, even 
if not formally binding, and the burden would be on the State relying on the 
1958 Convention's formulation in case of doubt to show that it had not been 
changed by universal acquiescence in some new practice as evidenced by the 
current draft. Indeed, the extension by the United States itself of an exclusive 
fisheries zone reaching two hundred miles from our coasts was accomplished not 
by a revision of the 1958 Convention but by legislation against the advice of the 
State Department. Moreover, not all maritime States are parties to the 1958 
Convention, and the relationship of that attempt to codify the law of the sea to 
states who rejected the codification, for whatever reason, is complex and cannot 
easily or quickly be summarized. And what is true for that single Convention is 
true for many. 

When I contemplated this situation, it occurred to me that a general rule 
existed which all seagoing officers learn sooner or later: On questions of treaty 
interpretation, only Washington is capable of giving guidance. The naval officer 
who tries to act as his own lawyer, like the lawyer who tries to handle his own 
case, treads dangerous ground and will probably hang his client. 

And what is true for treaty interpretation is true for all other questions of 
international law; perhaps even more so when there is no definitive text at all to 
refer to, or only a text like a statute, or a UN General Assembly resolution, or a 
draft unratified treaty, that is written for other purposes and aimed at other people. 
It is not rational to assign a competent international lawyer to each ship, not 
because there is a great shortage of competent international lawyers — and the 
calibre of military lawyers is at least as high as the calibre of lawyers in our society 



Rubin 35 

in general, including its academics — but because a competent international 
lawyer himself will know that at the root of every legal question is not an answer 
but a doubt. A learned analysis of the precise legal risks of alternative courses of 
conduct in an emergency is not only useless in practice, it is impossible. 

This is not to say that guidance, even elaborate and detailed guidance, should 
not be attempted, but that the utility of complex rules of engagement and 
equivalently detailed orders is limited to the circumstances in which the naval 
commander has the time and opportunity to use them. They may fill a gap 
between an emergency situation where quick and decisive action (or a decision 
not to act) is imperative to save life, protect a command, or assert a major national 
interest, and the situation in which there is time and opportunity to seek the 
guidance of a headquarters equipped to give it. But they cannot themselves guide 
a naval commander who must make a quick decision. 

What is needed is not definitive guidance, then, but a few, easily grasped, rules 
of thumb; guidance for guts when a gut decision must be made. 

Gut decisions by naval commanders are usually well based in their experience 
and general knowledge of American interests and policies, but cannot serve 
without rules of thumb when legal interests are at play. Our guts frequently 
deceive us. An anecdote, slightly inapropos, may be worth preserving: 

In 1965 I was the lawyer in the Office of the Secretary of Defense charged 
with responsibility for legal aspects of our Southeast Asian operations. My 
principal client was John McNaughton, a native of Pekin, Illinois, then Assistant 
Secretary of Defense (International Security Affairs), who in private life had been 
a professor of law (but not international law) at the Harvard Lav/ School. At a 
meeting in his office he asked for the views of his staff, including myself as his 
lawyer, on a proposal that had been referred to Secretary McNamara by President 
Johnson: Should we mine Haiphong harbor? As was typical in those days, we 
had not been given advance notice of the subject of the meeting, thus I had not 
checked the SEATO Treaty or other documents when I was suddenly asked 
whether it was legally required that the United States notify its allies before 
undertaking the operation. McNaughton's view was that it was undesirable as a 
matter of policy to notify our allies. Notice was tantamount to asking for 
objections; they might object and raise political problems even if legally we would 
be justified in the mining. Confronting them with a. fait accompli would be easier 
for them to accept and explain to their own constituents than what might appear 
to be a concurrence construed out of their failure to object. 

I disagreed. My view was that the risks to their merchant ships in Haiphong, 
which might be delayed there past the moment our mines were armed even if 
our notice were given before then, were significant, and that our failure to notify 
them before the mines were laid would, if they then objected, either result in 
our delaying the arming of the mines (in which case we might as well have given 
them prior notice), or create serious political problems ultimately resulting in 



36 Readings on International Law 

their drawing back from supporting us in Vietnam, which at that time was still 
considered possible and desirable. I thought that the consultation provisions of 
the SEATO Treaty might apply, but without the text to check and no time to 
do the necessary legal research into the negotiating history of the Treaty and the 
terms on which it was submitted to our Senate for advice and consent, I could 
not be sure of my view of the law. 

"Is it just your guts then, Rubin?", he asked. 

"Yes sir," I admitted. 

"Well, then" he replied (and I will probably always remember his precise 
words), "your guts and my guts just disagree on this one." The serious meeting 
ended in laughter. 

In retrospect, I don't know whose guts were closer attuned to political and 
legal realities; I think mine were, but that opinion rests on later research and 
knowledge of what in fact happened in Vietnam, including our allies' increasing 
mistrust of our military and political judgment there, things that neither of us 
could know at the time. It was my impression that the decision then not to mine 
Haiphong harbor was made on other bases, possibly wrongly, and I don't know 
what impact advance notice to our allies might have had. McNaughton is, 
tragically, dead and cannot give us his version of the anecdote. 

The point is the need for some rules of thumb to help guide our guts; to help 
focus the issues and give us a handle on the legal and policy implications of 
military action. With this in mind, I suggest the following fundamental principles 
as possibly useful to naval commanders. 

1 . Reciprocity. A fundamental rule of the international legal order is the equality 
of all States, big and small, before the law. Great strength may give us great 
political responsibilities, and possibly even some legal rights and powers not 
available to lesser States, but in general, and as a matter of basic principle, rights 
we assert for ourselves in the absence of agreement by others are rights that all 
other States can assert against us. If an American naval commander insists on 
sending a boarding party to a Peruvian gunboat suspected of harboring an 
American fugitive, a Peruvian commander (indeed the commander of a legally 
equal Ecuadorian vessel) will sooner or later be asserting the same right against 
an American naval vessel. To argue then that we have rights against our legally 
equal Latin American neighbors that they do not have against us is almost certain 
to have major political implications of the utmost gravity. The fact that we are 
bigger and stronger than our Latin neighbors will not prevent them from 
expropriating American property, or even, as in the case of the Pueblo off North 
Korea, seizing an American military vessel. Collective political action through 
the Organization of American States might be their non-military response. 
Remembering the rule of reciprocity would dampen down the understandable 
enthusiasm of an American naval commander unduly intent on accomplishing a 
law-enforcement mission. 



Rubin 37 

2. Minimal Force. It is fundamental to the international law of war, as well as 
to wise management, that unnecessary suffering and destruction is improper. 
Whether a use of force to "teach a lesson" is justifiable as "reprisal" or on some 
other basis must rest on particulars. It is a potentially difficult legal question to 
which the answer normally would be no. The international law of self-defense, 
which was definitively formulated by Daniel Webster in diplomatic correspon- 
dence with Lord Ashburton, the British Minister in Washington, in 1842 
justifies only the minimum force when the necessity is "instant, overwhelming, 
and leaving no choice of means, and no moment for deliberation." International 
law, like the law of many states in the United States, requires a threatened party 
to retreat before the threat as long as retreat is safe before using force in 
self-defense. This is not to say that there are no circumstances in which a naval 
commander may use force beyond the minimum necessary to safeguard his 
command, only that as a rule of thumb he should not; if he does he is likely to 
involve the United States in serious complications, an escalating use of force by 
others, and will find his superiors, to their dismay, forced to apologize for action 
he thought was justifiable. 

3. Effectiveness. In the long run, legal relationships flow from the facts, not 
from the technical labels we frequently use to disguise unpleasant reality. Thus, 
if a rebel group that has control of a foreign vessel is labeled a "pirate" or 
"terrorist" group by the recognized government against which it is fighting, and 
the United States does not recognize the legitimacy of the rebel government or 
its legal capacity to commission naval vessels, to the degree the labels represent 
a political ideal of the defending government or the United States and not the 
facts, it is the labels that will ultimately be changed. An American naval 
commander capturing a Chinese Communist gunboat in 1970, when the United 
States recognized the Chinese Nationalist Government in Taiwan as the sole 
Government of China, and the Government called the Peking authorities mere 
bandits, would create legal and political complications that might help clarify the 
law, but at the cost of his reputation for common sense. The reality of Communist 
control of the mainland of China actually determined American relations with 
Peking as early as 1949, and we accorded Chinese Communist "volunteers" the 
privileges of legal belligerents in Korea from the first days of their entry into that 
conflict in 1951, despite maintaining for political reasons a set of legal labels that 
made that status inconsistent with our public legal position. This is not to say 
that there are no legal effects to unreal labels, only that as a rule of thumb, in the 
absence of express guidance from above, naval commanders should rest their 
evaluations on reality itself, not on subtle and complex political and legal 
considerations that may require the formal use of deceptive legal labels for a time. 

4. Legal labels and "Autointerpretation. " Legal words are almost always decep- 
tive even to lawyers. President Ford is a lawyer, and he called the Kampuchean 
naval force that seized the Mayagiiez "pirates." The State Department quickly 



38 Readings on International Law 

"clarified" the situation denying that the President had intended "piracy" in the 
sense of the 1958 Geneva Convention in the High Seas, thus denying that the 
legal results of the label should flow. In fact, there is ample historical and legal 
basis for President Ford's use of the word, but that use is not the one purportedly 
codified in the 1958 Geneva Convention on the High Seas. There seem to be 
at least six quite different conceptions of "piracy" that have been used from time 
to time by international lawyers to justify suppressive action, some of them 
wholly outdated, merely political, or simply irrelevant to the situations to which 
their legal implications are occasionally sought to be applied; President Ford was 
apparently using the word without a clear idea of which sense was intended. As 
a rule of thumb, then, naval commanders should beware of drawing legal results 
from labels used by newspapers, stafflawyers, or even the President of the United 
States. 

The unwisdom of acting on the basis of labels rather than on the basis of facts 
is reflected in a deeper conception familiar to international lawyers: 
Autointerpretation. Since all States are equal before the law, and there is no 
formal legislative body and only a very limited judicial competence in the 
international legal order, the legal classification of facts on the basis of which 
action is taken by States must always in the first instance rest on "autointerpreta- 
tion": The classification made by the acting State's responsible officials for their 
own purposes. But autointerpretation is not a definitive legal determination of 

Q 

the true relationships and their legal results. States have apologized for acts taken 
pursuant to self-serving autointerpretations which in retrospect seemed more like 
mere adversary briefs than convincing analyses. The final determinations are 
made by the political pressures of the entire international community and by 
history. Thus naval commanders, like international lawyers, should approach the 
most convincing legal arguments with a certain degree of skepticism. A firm 
position stated by a Soviet vessel that the United States has no legal right to retain 
custody of a fleeing Soviet sailor reaching an American vessel on the high seas 
cannot legally be more than a Soviet autointerpretation of the law. It cannot in 
theory or practice be a determination of the law however persuasively argued. 
And, similarly, in the absence of an order absolving an American naval com- 
mander of responsibility for his action, even a legal position uttered by the United 
States Government is a shaky basis for action. Wise policy must be influenced 
by legal perceptions, just as it must reflect economic interests and military 
interests, but the self-serving legal briefs of only one party are not a solid basis 
for decisionmaking, even in legal theory. 

5. Supremacy of the Law. It may seem odd after this analysis to refer to the law 
as supreme, but it is necessary. The final determinations made by politics and 
history are devastating. To ignore the inherent weakness of autointerpretations 
and adversary briefs before the glare of publicity, counterargument and the many 
legal and political actions that States take to keep each other in line would be 



Rubin 39 

foolish indeed. But to ignore the obvious fact that the final determinations of the 
law made by the world community and by history deal severely with those who 
ignore the law is to be blind indeed. The guidelines of reciprocity, minimal force, 
and the ultimate effectiveness of facts, coupled with a healthy skepticism about 
glib legal labels and an appreciation of the inherent doubts that underlie all legal 
argument until history has had a chance to deliver its judgment, seem appropriate. 
They lead to caution in action, which is all to the good when real lives and 
property are at stake, but do no inhibit necessary action in a true emergency. 

So far, we have been addressing international law at such a basic level that the 
degree of generality may obscure the practical utility of the law. It is possible to 
be more specific. 

6. Territorality. The prehistoric basis for our nation-state system probably rests 
on religious and ethnic-family and tribal feelings rooted in our deepest in- 
heritance; part of our wiring rather than our software programming. It is also 
possible that to some degree our emphasis on territorial integrity is built into the 
system. International law takes account of both in allowing states to make rules 
for their nationals wherever they may be, and to make rules for everybody, 
foreigners as well as nationals, within the territory politically dominated by the 
rule-making and rule-enforcing authority, the government. The system is more 
complex than it seems; there are territory-less rule-making and rule-enforcing 
organizations, like churches; there are exemptions from territorial enforcement 
for transiting diplomats and others; there are overlaps and underlaps. Fundamen- 
tally, however, the territorial sovereign is supreme in his territory, and his 
territory includes his internal waters, territorial seas and, for some purposes, wide 
belts of fisheries and other exploitation zones. When a vessel of another State 
appears in any of those zones, even if there is no treaty governing the situation, 
as is in fact the case regarding extended fisheries zones today, and even if for some 
purposes the zone is labeled part of the high seas, an overlap of sovereignty occurs. 
The flag State of a vessel has the jurisdiction in that vessel necessary to allow the 
master to exercise the authority he needs without fear of a claim against him for 
false imprisonment or assault when he disciplines a crewman or passenger. 
Indeed, from earliest days vessels on the high seas and in foreign ports were 
conceived as part of the territory of their country of origin for purposes of internal 
discipline and property rights. But a vessel is not a part of the flag State's territory; 
the analogy loses its persuasiveness quickly when contemplating air space above 
the vessel and the routine exercise of port-state customs and immigration 
authority on boarding visiting private vessels. The extension of territorial 
jurisdiction is built on a fiction, limited by the principle of effectiveness, and 
yields in general to the prescriptions of the territorial waters or ports. Even though 
warships, by long usage and mutual acquiescence, are normally considered 
immune from the territorial sovereign's enforcement authority, in case of conflict 
their only recourse is to leave the territorial waters. In general, in these days of 



40 Readings on International Law 

rising international claims to law-making and law-enforcing authority for special 
purposes in large areas of what formerly were considered to be the high seas, 
claims which the United States makes also, principles of reciprocity would 
normally require an intruding military vessel to leave rather than contest any 
assertion of right based on the extension of territorial jurisdiction seaward. There 
may be cases in which passage is forced, but those must be dictated by higher 
authority, which will presumably have considered the impact of reciprocity, 
minimal force, and effectiveness, as well as the relative persuasiveness of the 
autointerpretations of all States concerned, before issuing the orders. But as a rule 
of thumb, a naval commander can no longer confidently oppose territorially 
based claims with assertions of historical rights based on glib labels like "high 
seas" and "freedom of navigation" or even "innocent passage." 

7. "Functional" Sovereign and Diplomatic Immunities. Traditional perceptions of 
the immunities of diplomats and of arms of the sovereign, including naval vessels, 
have been rapidly changing in the past few years. While there can be no doubt 
of the illegality of the Iranian seizure of American diplomatic and consular 
personnel and even private American nationals in Teheran in 1979, the 1961 
Vienna Convention on Diplomatic Relations ended whatever had remained of 
theories of absolute diplomatic immunities and replaced it, to the extent 
developing conceptions of law outside the treaty framework had not already 
done so, with a conception of "functional immunities": Immunity from host- 
State territorial jurisdiction limited to what was necessary for the accomplishment 
of the diplomatic mission. Old catch-phrases, like "train of the Ambassador," 
and the idea that an embassy is a little bit of foreign territory enclaved in the host 
State, to the extent they had lived till then, died. The United States agrees with 
the changes, and it would do us no good to resist them. Thus, when a foreigner 
seeks asylum from his own government in an American embassy, the right of the 
United States to grant that asylum is severely limited. Occasionally, heart- 
wrenching circumstances, as with Soviet religious dissidents in Moscow, or 
Cardinal Mindszenty in Budapest, lead the United States to permit an asylum 
situation to arise where there is really very little legal basis for our position. But 
those are rare and decided at the highest political levels in the United States. A 
naval commander faced with a fleeing foreigner may be in a somewhat better 
practical position if he can leave the territorial waters of the host State, but his 
legal position is also weak. As with embassies, he has no legal immunity from the 
actual prescription; he must rest on his functional immunity from local enforce- 
ment action. He may violate international law by not paying due regard to the 
law of the coastal State. 

This is not to say that, as a rule of thumb, asylum should always be denied. 
There are humanitarian concerns that permit it. But the naval commander must 
be aware that his immunities are limited and grave difficulties may result if he 
cannot defend his command before the fury of a host State convinced that its 



Rubin 41 

jurisdiction and hospitality have been abused. Of course, if the asylum incident 
occurs on the high seas or within American waters, no such conflict of jurisdiction 
exists and rescue operations and asylums are governed by American law alone in 
the first instance. 

Another modern trend is the increasing restriction on the immunities of 
foreign States acting in a commercial capacity. The fact of a ship being designated 
a naval vessel by the law of its flag State represents today only an autointerpreta- 
tion of facts that a foreign State or its national court might well want to look at 
from a different point of view. The United States has been in the forefront of 
States denying sovereign immunity from law suits based on the commercial 
activities of foreign governments, and the concept of "commercial" is held to 
rest on the nature of the operation, not its purpose. Combat operations and 
legislation are regarded as in their nature governmental; routine navigation and 
local activities that are typical of any ships, not just public vessels, are regarded 
as in their nature commercial. Thus, buying ships' stores even for a warship is 
regarded in the United States as a "buying," not as a governmental activity in 
support of combat operations, and a common law suit can be brought against 
the purchaser to enforce the purchase contract. It has not yet reached the point 
of permitting the arrest of a war ship in an admiralty proceeding to enforce a 
lien, but the trend is heavily in that direction. The fact that the United States 
might stop short of setting such a precedent is not necessarily an indication that 
foreign countries, which have watched the American initiative with some 
apprehension, will stop at the same point we do when they evaluate their own 
interests and come to their own autointerpretation of the law. 

8. Humanitarianism. There is a serious question in the minds of international 
lawyers whether humanitarian principles, whatever they may be, form part of 
the legal obligations of States. Strong arguments can be made both ways. As a 
rule of thumb it is probably true that things done in derogation of a foreign 
sovereign's jurisdiction in the interest of saving life are not likely to raise serious 
problem, but that derogation to save property are. The British historically raised 
the issue over slavery: a right to life issue to them and a right to property issue 
to the Portuguese, Americans and others. The result was a victory in theory for 
property, and a victory in practice for the British, who marshalled public support 
and political pressures until slave trading States agreed to change their laws and 
to permit, by treaty, the British to enforce antislave-trade rules on their vessels. 
There are, of course, times when equivalent problems arise today, for example 
over the right of a foreign national to flee oppression not linked to life-threatening 
mob action but to his own government's abusive exercise of its jurisdiction. In 
those cases, the intervention of American vessels to help the fleeing foreigners is 
frequently viewed as an interference in the foreign State's internal affairs — its 
territorial integrity and the ancient link a State has with its nationals wherever 
they may be. In general, the greater the political motivation for the flight, and 



42 Readings on International Law 

the less the immediate life-threatening emergency, the more dubious the 
justifiability for American actions, even as a passive receiver of fleeing persons. 
If there is any rule of thumb in this area, it would seem to be equivalent to the 
rule we all apply when we see our neighbors quarreling or beating each other 
and their children; we don't interfere unless the situation becomes shocking to 
the point that we cannot simply stand by and watch. At that point, regardless of 
the law the risks seem worth it. 

9. Mind Your Own Business. One of the most profound rules of the interna- 
tional legal order, so much so that it has a Latin phrase to go with it, res inter alios 
acta, is that a quarrel between others is legally of no concern to us. There is no 
basis for an international claim unless a legal interest of the claimant is violated; 
there is no basis for diplomatic or military action unless that basis can be found 
in the law. In international law, phrases like "honest broker" and "friend to all" 
have no force. The institutional arrangements for community action rest on the 
consent of the States to whom the complaint or military action is addressed. That 
consent has been given in the adherence of nearly all States to the Charter of the 
United Nations, but that consent extends only to collective action using the 
organs of the United Nations and to individual States deriving their authority 
from United Nations legal action, as the United States and other States did in 
Korea in 1950. Regional organizations, like the Organization of American States, 
have a role to play in resolving international disputes and occasionally authorize 
military action. The quarantine of Cuba in 1962 was authorized by the Organiza- 
tion of American States, thus it was possible indirectly to construe the entire 
action as occurring with Cuban consent, Cuba being still a member of the 
Organization. There were, and are, doubts as to the legal power of the 
Organization to take enforcement action. The Soviet Union is not a member, 
yet the quarantine involved interference with Soviet vessels. Moreover, enfor- 
cement action is the exclusive prerogative of the Security Council of the United 
Nations under the Charter to which all members of the organization of American 
States are also parties. But those doubts are subtle, and technical, and were 
unnecessary to resolve once it was clear that the United States had a legal position 
that assured it of the support of its Latin American neighbors in the action against 
Cuba and the Soviet Union in the Western Hemisphere. In that case, the rule 
of thumb may have worked better than a more technical and detailed analysis of 
the law would have permitted. The rules of thumb thus, that require naval 
commanders to mind their own business and limit self-defense actions to true 
emergencies, do not operate to prevent collective action instead of individual 
action when a quarrel between others threatens general community interests. 
They withhold from any single State, including the United States, the legal power 
to act as a universal policeman, and strengthen the collective mechanisms that 
disperse responsibility for keeping the peace among all the members of the 
community and limit the risks of confrontation. 



Rubin 43 

The foregoing listing of rules of thumb for gut decisions is not exhaustive, but 
I hope they hit the major points and will be useful to operating naval com- 
manders. 



Professor Rubin was serving as the Charles H. Stockton Professor of International Law at the 
Naval War College when this article was first published. 



Notes 

1. T.I.A.S. 5200, 13 U.S.T. 2312, 450 U.N.T.S. 82. 

2. U.N. Doc. A/CONF. 62/WP.10/Rev.3. 

3. The Fisheries Conservation and Management Act of 1976, Pub. L. No. 94-265. The contrary advice 
of the State Department may be studied in U.S. House of Reprentatives, Hearings before the Subcommittee 
on Fisheries, Wildlife Conservation and the Environment, of the Committee on Merchant Marine and 
Fisheries, 94th Cong., 1st Sess. 47-50, 86-154 (1975). 

4. Jennings, The Caroline and MacLeod Case, 32 Am. J. Int' L. 82 (1938). 

5. MOORE, DIGEST OF INTERNATIONAL LAW 414 (1906). 

6. For some historical instances in which the British labeled as "pirates" the military arm of some Malay 
Sultanates which they were treating in other ways as States in the international legal order, see Rubin, The Use 
of Piracy in Malayan Waters 1968, Grotian Society Papers at 111 (1970). In 1828 Commodore Sir Thomas 
Staines burned or captured eleven "piratical vessels" in Grabusa Harbor (Ionian Islands, now part of Greece) 
whose depredations had been committed while they flew the Ionian flag and had privateer licenses from the 
British-protected government of the Ionian Island. Naval Records Society, Piracy in the Levant, 1827-8, Selected 
from the Papers of Admiral Sir Edward Codrington, v. 72 K.C.B., at 42-52, 67-70, 246-248 (1934). The same 
perception colored European treatment of the Barbary States in the early 19th century. See Mossner, The 
Barbary Powers in International Law, Grotian Society Papers 197 (1972). 

7. On the hopelessly confusing codification of 1958 see Rubin, Is Piracy Illegal? Am. J. Int'l L. 92 (1976). 
Distressingly, the 1958 codification is repeated more or less verbatim in the current draft before UNCLOS III 
cited above at n. 2. 

8. The leading article on this is Leo Gross, States as Organs of International Law and the Problem of 
Autointerpretation, in LAW AND POLITICS IN THE WORLD COMMUNITY 59-88 (Lipsky ed. 1953). 
Professor Gross first popularized the word "autointerpretation" to label this complex but fundamental 
conception. 

9. The Foreign Sovereign Immunities Act of 1976, 28 U.S. Code Sees. 1330, 1602 sq. provides that the 
State itself shall not be immune from the jurisdiction of courts of the United States in any case in which the 
action is based on "an act outside the territory of the United States in connection with a commercial activity 
of the foreign state elsewhere and that act causes a direct effect in the United States" (Sec. 1605(a)(2)). It also 
provides that a foreign State shall not be immune "in any case in which a suit in admiralty is brought to enforce 
a maritime lien against a vessel or cargo of the foreign State, which maritime lien is based upon a commercial 
activity of the foreign State" (Sec. 1605(b)). "Commercial activity" is defined in the act to include "a particular 
commercial transaction" and says further that "The commercial character of an activity shall be determined by 
reference to the nature of the . . . particular transaction or act, rather than by reference to its purpose." (Sec. 
1 603(A) (d)). Legal questions about the constitutionality and precise meaning of these provisions are only now 
beginning to be decided by American courts. Foreign countries enacting their equivalent statutes are not bound 
by the American Constitution or American interpretation of the American statute. 



PART TWO 



OCEANS LAW 



Chapter 4 

Sea Power and the Law of the Sea: 
The Need for a Contextual Approach' 

George K. Walker 



The beginnings of the U.S. Navy's third century may have signalled a 
rethinking of navies' roles in the international power process and ultimately 
in all aspects of international interaction. Ken Booth's Navies and Foreign Policy 
appeared in 1976, following D.P. O'Connell's Influence of Law on Sea Power 
(1975), Edward Luttwak's Political Uses of Sea Power (1974) and James Cable's 
Gunboat Diplomacy (1971). And, for the Soviets, Adm. S.G. Gorshkov has 
produced his "summa of naval power," Sea Power and the State, said to be "dense, 
rich, logical and almost overpowering in breadth." 

The latest American study on the relationship of military power at sea to 
international law as the flow or process of authoritative and controlling decision 
is Mark W. Janis' Sea Power and the Law of the Sea. His theme is well stated in 
the introduction and his final chapter: 

The law of the sea is the creature of international order, reflecting patterns of 
compromise and consensus, insofar as they exist, among the competing and 
complementary interests of states. Since security interests are vital to every country, 
it is only reasonable to expect that States will consider sea power when devising 
ocean policy. It would be remarkable if a workable legal order for the oceans did 
not accommodate national naval interests. 

Sea power influences the development of the law of the sea not only by imposing 
the need to reconcile naval interests in international negotiations, but when naval 
force is used to advance national claims to international law of the sea. . . . Navies 
often [have] a role in this process of . . . law making. . . . 

International society, like any society, needs a more complex legal system when 
more actors relate in more ways. The steadily increasing number of ocean users 
and uses means that a more detailed ocean law is inevitable. Navies will be 
ensnarled in this new complexity. But the new ocean order will not only impede 
the accomplishment of some naval missions, it will facilitate others. Remembrance 
and reverence of the old ocean order will not be enough. Navies must reexamine 
their relationships to the law of the sea and their preferences for legal rules keeping 
the emerging ocean order in mind. 



* Reprinted from the Naval War College Review Spring 1978. 



48 Readings on International Law 

He acknowledges that "the new ocean order is bound to create some difficulties 
for naval operations," noting that the old ocean order was ideally suited for the 
mobility of powerful navies, whereas the emerging new consensus "will impose 
restraints on ocean use where before there were none." 

This article will first review Janis' exposition of these themes. Second, his book 
will be examined in context of those other recent publications noted in my first 
paragraph. Third, his monograph will be examined in the context of international 
law to illustrate the breadth of sources that must be considered when a naval 
operation is being planned or when situations develop in the ocean environment. 
Finally, the article will illustrate the utility of the contextual method of problem 
solving through decision theory, particularly the policy science approach. While 
Sea Power has certain shortcomings, whether viewed from the perspective of a 
traditional lawyer or from the policy science vantage point, the book is a very 
commendable first effort by an outstanding young scholar with real promise. 

The first four chapters focus on the four major naval powers — the United 
States, the Soviet Union, Great Britain, France — and these States' interests in law 
of the sea (LOS) issues, each nation's domestic interests in "ocean policy 
processes," and the reflection of naval interests in each country's ocean policy. 
Chapter five primarily analyzes the coastal navy States' interests in the main law 
of the sea issues. Each of the first four chapters begins with the major powers' 
conceptions of their navies' missions or roles as seen by the head of its navy or 
by an authoritative decisionmaker in the equivalent of the U.S. Department of 
Defense, in the sub-chapter on naval interests in law of the sea issues. The 
subchapter continues by analyzing the strategic deterrent forces and those vessels 
that would carry out conventional missions. The reader is referred to standard 
sources such as Jane's Fighting Ships for descriptions of each country's navy, but 
Janis might also have considered the heightened power of combinations such as 
NATO, the Rio Pact, the Warsaw Pact, or other published alliances. Chapter 1 
analyzes the principal legal issues in present law of the sea negotiations that affect 
the U.S. Navy: right of passage through straits, including analysis of straits crucial 
to American naval interests; transit along coasts, and therefore the issue of the 
territorial sea; and military use of the deep seabed. This theme is repeated in 
succeeding chapters to demonstrate that the Soviet Union, Britain and France 
have positions similar to the United States on straits and the territorial sea, 
although the British and French stance is less clear and may be subject to change 
in the future. The United States and the U.S.S.R. differ on the issue of military 
uses of the seabed, the United States favoring a regime permitting implantation 
of listening services, while the Soviet Union has desired complete demilitariza- 
tion of the seabed. Janis sees this difference as resulting from "scientific lag" or 
perhaps from propaganda intents, and notes third-world support for total 
demilitarization. 



Walker 49 

The bulk of the fifth chapter recounts the differences between the naval 
powers and the coastal States on the straits issues and the general consensus for a 
12-mile territorial sea except for questions related to economic resources. The 
discussion of naval interests in law of the sea issues in the first five chapters cites 
standard references relating to naval missions and naval forces. Janis relies on 
treaties and standard works on the law of the sea in laying the groundwork for 
his analysis of recent international negotiations relating to the law of the sea issues. 
He frequently cites the Informal Single Negotiating Text (ISNT), the Revised Single 
Negotiating Text (RSNT), or individual States' positions relating to the negotia- 
tions, and cites U.N. General Assembly resolutions in point. 

Janis' summary of the United States internal decisionmaking process for 
formulating a coherent oceans policy reveals the bewildering complexity, or 
morass, of governmental agencies that have an input, or finger in the pie, for 
these issues. While the corresponding subchapters on the role of British and 
French naval interests in the ocean policy process also discuss the internal 
governmental decisionmaking processes, some attention is paid to the strength 
of private shipping interests and public opinion. Except for indirect references 
to pressures on Congress, and a summary of commercial interests, and non- 
governmental organizations, there is little discussion of the great influences these 
groups can bring (and have brought) to bear on official decisionmaking. The 
U.S.S.R. Navy's role in its ocean policy process is, as with most things Soviet, 
still much of "a riddle wrapped in a mystery inside an enigma." However, certain 
externalities of Soviet national interests, such as its growing merchant fleet, and 
the composition of the U.S.S.R. delegation to the law of the sea conference give 
some keys to its internal decision process, as Janis suggests. One egregious 
omission from the analysis in the chapter on coastal navy States is any discussion 
of the pressures that shipping interests of countries such as Japan and the 
Pan-libhon nations (Panama, Liberia, Honduras) may have exerted on the 
negotiations or the national decision process. Similarly, there is little mention 
of the interest of states that are great consumers offish and other marine resources. 

Janis sees these crucial interests of the world's navies in ocean policy: the 
breadth of the territorial sea, conditions for the right of transit through interna- 
tional straits for warships, and the use of the deep seabed for military purposes. 
In each chapter he relates the legal position of the major naval powers and the 
coastal States to the available stated positions of their navies' decisionmakers. As 
with the Soviets in other aspects of the book, concrete information is scarce. The 
coastal States' positions vary and perforce are only summarized. 

The sixth chapter, "Navies and the Development of the Law of the Sea," 
examines naval interests' influence on the development of the law of the sea, or 
the "process [of] authoritative decision [that] generates [the] law of the sea both 
by custom and by convention," referring to the work by Professors Burke and 
McDougal. The sub-chapter on naval power's influence on the development 



50 Readings on International Law 

of customary law of the sea notes the beginnings of customary international law 
in the last two centuries, then plunges abruptly into the 1972-73 cod war between 
the United Kingdom and Iceland. While the latter conflict makes the point, a 
more complete historical discussion might have mentioned the evolution of the 
cannon-shot rule into the 3-mile limit, the developing practice or custom of 
collecting debts by gunboat diplomacy in the 19th century, or the Corfu Channel 
Case of 1947. These customs have since been vindicated or repudiated by 
international convention. Introduction of such paradigms would have provided 
a natural transition to the subchapter on "Naval Interests and the Law of the Sea 
Negotiations." The influence of naval action on international custom and 
custom's impact on national courts was not discussed, nor did the author discuss 
the reciprocal effect of customary international law on seapower, a theme of 
O'Connell's study and a factor perceived by Cable. Janis' study of the interplay 
of naval interests and the development of international agreements to govern the 
regime of the oceans is primarily concerned with the recent Law of the Sea 
Conference negotiations. The naval input into the development of treaty norms 
is old; for example, Matthew Fontaine Maury, and therefore the U.S. Navy, was 
a major force in early conferences on weather problems. Similarly, the opposition 
of naval interests as articulated by Alfred Thayer Mahan to arbitration, which 
perforce requires a treaty, must have had its influence. As O'Connell has pointed 
out, treaty law has also had an influence on the employment of naval force. 

The final chapter, "Navies and the New Ocean Order," concludes that the 
new ocean order — whether based on convention or consensus through new 
customary norms — "is bound to create some difficulties for naval operations." 
The old regime was based on freedom of the seas "suited for the mobility of 
powerful navies." The new norms for the oceans will follow a theme of restricted 
use. "The navies of the world will not only be called upon to respect new national 
regional and international maritime laws, but sometimes [will be] expected to 
help establish rules in times of conflict and uncertainty." Janis views the United 
States and the Soviet Union, more than the lesser naval powers, as facing the 
great dilemma (or frustration) of possessing relatively overwhelming naval force 
in an era of decreased high seas mobility due to the new restrictive international 
norms. O'Connell would agree with Janis that "the law of the sea . . . dictates 
the practicalities of [the] deployment of sea power," and that the professional 
insights of the naval officer who is aware of the law, and the lawyer who 
understands what goes on inside warships, must be the result of a continuing 
dialogue. O'Connell would also inject the developing technology of navies as 
an active factor in self-defense, permitted under international law, contrasted 
with Janis' apparent conclusion that the new norms may serve as only a cramp 
on the style of the mobile navy. More importantly, O'Connell would urge the 
world's naval staffs (and, this writer would add, decisionmakers at the national 
policy level) to take the predicted trends that have been postulated and plan 



Walker 51 

accordingly, including "machinery . . . for rapid appreciation of the legal issues 
and equally rapid reaction if the theory of self-defense is to be effectively translated 
into terms of sea power." 

A Comprehensive Approach to the Law of the Sea and Seapower. Janis* 
monograph is an excellent linear study of the relationship of seapower and the 
law of the sea, particularly in the situation of peacetime norms. However, a 
law-oriented study of the problem would demand a more comprehensive 
approach, both as to sources for norms and the theoretical foundations of 
international law. 

While his fifth chapter does justice to two traditional sources of international 
law, treaties and custom, inexplicably he omits reference to general principles of 
law recognized by civilized nations, and the subsidiary sources of judicial 
decisions and the "teachings of the most highly qualified publicists of the various 
nations." To be sure, these sources may not be as clear-cut or as persuasive as 

Q 

treaties or custom, but such national court decisions as Pacquet Habana or Schooner 
Exchange v. McFadden have had great influence on the development of interna- 
tional law. 

Similarly, writers such as Hugo Grotius, John Bassett Moore, Myres S. 
McDougal, or Grigori Ivanovich Tunkin, are frequently cited. Janis often refers 
to these writers, but he does not list them as a source. The perspective of any 
author in international law should be considered as well; compare the widely 
varying approaches of Professor Ian Brownlie or Lord McNair, representing 
the traditional British and European school in style or in thought; the views of 
jurists from emerging nations such as Judge Roy, who see a larger community 
of law and legal institutions; the input of great regional scholars such as Judge 
Alvarez and Carlos Calvo, who reflect the perspectives of Latin America; the 
Soviet approach to international law issues, as, for example, G.I. Tunkin's 
concept of the relationship of law and the Communist revolution; or the policy 
science approach of Professor Myres S. McDougal. Janis has treated Soviet 
perspectives on international law elsewhere, with specific reference to Admiral 
Gorshkov's works, but articulation of these perspectives might have explained 
the theory behind the pronouncements. 

Janis* monograph relies heavily on conventions among states, the preparatory 
work for such treaties, the debates of international organizations and conferences 
(which may or may not be part of the travaux preparatoires — preparatory work, 
or "legislative history" as American lawyers would put it — of treaties), and 
customary international law. However, nowhere does the author note the 
important distinction between treaties among nations and binding as to them and 
the important use of families of treaties as general evidence of customary 
international law. The great division of authority on the proper use of travaux 
preparatoires is not developed. The importance of the Truman Proclamation, 



52 Readings on International Law 

asserting jurisdiction over the continental shelf adjacent to the United States, and 
the Latin American States' claims for a wide fishing zone, could have been tied 
to a generally recognized source for customary international law that he would 
urge for the world's navies, namely, practice among nations. Some discussion of 
national attitudes about law and sources of the law would have been a useful 
addition to the study. 

A comprehensive examination of law of the sea issues should also explore the 
problem in its total context. Viewed in its largest geographic scope, the law of 
the sea includes the land, the sea and its tributary waters, the seabed, airspace and 
outer space. Each of these geographic features is interrelated with the others, and 
the legal regime of the sea and the seabed cannot be properly considered without 
a thought for the other geographic arenas. For example, what does it profit a 
nation to demand a 3, 6 or 12-mile limit for purposes of coastline security if its 
adversary can collect all the data it needs by reconnaissance satellite in violation 
of the Convention on Peaceful Uses for Outer Space? The naval commander's 
judge advocate must have an appreciation of the circumstances that would permit 
destruction of such satellites. Air operations are a major factor in naval power 
today, yet there was little integration of what rules there are for air warfare and 
for peaceful use of airspace. Janis' scope is peacetime use of the oceans; however, 
the law of armed conflict — also a part of international law — has important norms 
binding on nations, particularly in a projection context: rights of fishing vessels, 
rights of merchant ships, submarine cable protection, mine warfare and blockade, 
the rights of belligerent vessels in neutral ports, hospital ships, the rights of 
disadvantaged persons involved in naval operations (the wounded and 
shipwrecked at sea, civilians, and prisoners of war), and so on. Janis might have 
mentioned the Nuclear Non-Proliferation Treaty, the Antarctic Treaty, or the 
Latin American nuclear free zone both for their possible impact on oceanic law 
problems and as part of the trend relative to peaceful uses of the deep seabed. 

Janis has recognized the connection between the peacetime uses of the sea, 
the usual context the LOS negotiations contemplate, and the different factors at 
work during war, but he does not so state in Sea Power. Assuming that the scope 
is to be limited to peacetime naval operations, or to cold war confrontations, 
discussion of the United States-U.S.S.R. Agreement on Incidents at Sea, con- 
ventions on the international rules of the road, mercantile agreements that 
indicate policy shifts as important as those in the LOS negotiations, and the welter 
of environmental treaties and national legislation, would have placed the 
evolving oceanic law in deeper perspective. Finally, the naval officer — be he line 
commander or judge advocate — must be aware of the ever-present factors of 
national criminal statutes that limit or prescribe conduct on the oceans, his own 
code for military discipline, and his navy's general regulations that may have the 
force of law. To be sure, these sources are usually considered in the context of 
individual responsibilities, but fleet commanders also risk indictment or charges 



Walker 53 

preferred for participation in piracy, hazarding vessels, or disobedience of lawful 
regulations and orders, for example. 

Thus while his study is valuable as written for a monograph on the role of 
naval power and current trends in the Law of the Sea Conference negotiations, 
a broader perspective would have resulted in a more comprehensive analysis. 
The product would have been a weightier, and therefore perhaps less attractive 
book for many readers. Sea lawyers will be happier with Sea Power as it is, to be 
sure. For the professional military man who is not a lawyer, these comments are 
not published to denigrate a fine monograph, but to apprise him of the need to 
probe more deeply, perhaps with the aid of his judge advocate, for more definitive 
answers to very complex issues. 

Time will provide an additional gap in the coverage of Sea Power as the law 
of the sea continues to develop along certain established lines and perhaps with 
some of the new inputs discussed above. Already, the Informal Consolidated 
Negotiating Text has emerged from the Law of the Sea Conference to supplant 
the Revised Single Negotiating Text relied on by Janis. The accelerating pace of 
legal developments should prompt text publishers in this area, as in others, to 
adopt the military services' use of looseleaf, ring-binder formats for easy insertion 
of changes rather than the traditional hard-cover binding. 

A Policy Science Approach to Problems of the Law of the Sea. At least 

one great configurative, multidimensional policy science study of the law of the 

1 ft 
sea has been written, and others are no doubt on the way or in print. McDougal 

and his Yale associates took over a thousand pages to consider The Public Order 
of the Oceans under this method, compared with the 109 pages of Sea Power. Even 
explanations of the policy science approach to problem solving have been 
lengthy. The scholarship in this field has been extensive. The policy science 
approach is, of course, not the only school of jurisprudence, but it may be 
unique in its theory about law in the social process, as distinguished from theories 
of law as an entity unto itself, to be studied in a vacuum. The policy science 
model is, of course, not the only relatively new method for examining compli- 
cated issues and is only one of many innovative processes of informed decision- 
making. Among the more familiar for the military commander are systems 
analysis and game theory, often based on economics or numbers. Others include 
economic analysis, decision analysis, and cost-benefit analysis, often computer- 
supported. Even as such models may "offer the basis for an improved explanation 
of happenings in international politics,"' the policy-science schema may help 
the decisionmaker in placing law and its role in context. These complex analytical 
tools are not necessary for simple decisions, and there are the problems of keeping 
the study realistic and the terminology understandable. However, use of a new 
or metalanguage, as with the employment of Latin terms by doctors or lawyers 
by providing agreed meanings, may promote clarity. 



54 Readings on International Law 

Effective Power Process. This part of the article will sketch the policy science 
model and will place Janis' book, and other recent studies related to oceanic law, 
in that context to illustrate how the system works and its potential usefulness for 
the naval decisionmaker, be he professional military man or legal specialist. 
Concentration will be made on the effective power process, as distinguished from 
the larger social process model. References, except to the recent studies reviewed 
in this article and occasionally, to policy science materials, will be minimal, but 
the reader's attention is invited to the more comprehensive analyses available 
elsewhere, upon which this section of the article is based. 

Social Process. Policy scientists begin their consideration of problems in the 
context of the social process, that ongoing interaction of persons and other 
participants (nations, navies, etc.) in an increasingly interdependent series of 
communities, starting with a world community and working down through a 
series of the interlocked, interdependent and interacting communities (regional 
organizations such as NATO, the EEC, etc.; nations, w state and local governments) 
to the smallest (the family or the tribe). The social process may be divided into 
eight value processes: power, the giving and receiving of support in government, 
politics, and law; wealth, the production and distribution of goods and services, 
and consumption; enlightenment, the gathering, processing and dissemination 
of information; skill, the opportunity to acquire and exercise capability in 
vocation, professions and other social activities; well-being, synonymous with 
safety, health and comfort; affection, personal intimacy, friendship and loyalty; 
respect, personal or ascriptive recognition or worth; rectitude, participation in 
forming and applying norms or responsible conduct. Through the methodology 
of claim, participants (individuals, navies, nations) act in various ways to optimize 
these values as goals through various institutions that affect resources (often 
known as "base values," "base" being employed in the same sense of source of 
resources as the original connotation of "naval base"). These eight value processes 
"have no magical quality and are chosen for their convenience in [the] analysis 
of [the] social process." To put theory into realities for the naval commander: 
Morale is a constant problem and a sought-after goal aboard ship. Examined in 
the policy-science context, values for enhancing morale might include: proper 
administrative or disciplinary measures to punish shipboard theft as corrosive of 
morale (power); encouragement of advancement through successful completion 
of rate examinations, thereby increasing sailors' pay and prestige (wealth, en- 
lightenment, respect); ordering men to leadership school (enlightenment, skill, 
rectitude); encouraging leave and liberty, commensurate with the needs of the 
service (well-being in the sense of improved mental health from a "change of 
pace"); affection, developed, through renewal of shoreside friendships. 

These goals are, of course, achieved through a continuum of time, space and 
other dimensions known to policy scientists as phase analysis, which will be 



Walker 55 

reviewed later in this article. Law, as part of the effective power process (as 
distinguished from naked power, or the assertion of authority by sheer expedien- 
cy or brute force), is seen as the flow of authoritative and controlling decision. 
Put other ways, law is the comprehensive process of authoritative decision, or 
the constitutive process, in which rules are continuously made and remade. The 
functions of rules of law are to communicate the perspectives (demands, 
identifications and expectations) of people in communities about this com- 
prehensive process of decision. The rational application of these rules in particular 
instances requires their interpretation, as with any other communication, in terms 
of who is using them, with respect to whom, for what purposes, and in which 
contexts. Law is seen, then, as the proper result of the power process; but to a 
policy scientist law must be viewed in the broader context of other values — for 
example, law (as commonly understood by laymen) must be considered in 
relation to the "laws" of wealth or economics (also as commonly understood by 
the layman). Furthermore, the functioning of the effective power process, or 
law, must be considered against a background of interdependent nations and 
other communities. "No State has complete freedom of effective choice today. 
We are all scorpions in the same bottle." 

Janis' study does not explicitly adopt a policy science approach. He does 
recognize this interactive process indirectly by his reference to McDougal and 
Burke's Public Order of the Oceans in Chapter 6, and in his introductory declaration 
that "[t]he law of the sea is in the midst of turmoil." Regrettably, he does not 
postulate a definition of "the law of the sea," although he is careful to define 
seapower as "force and threat of force on the oceans." It would appear, however, 
from close examination of the book and its sources that he goes at least halfway 
toward the policy scientist's contextual treatment of law within the social process. 
Citation of U.N. General Assembly resolutions (not considered "law" by 
traditional writers), preparatory works of conventions (not approved by some 
scholars as bases for interpretation of treaties except in specific circumstances), 
and the inclusion of various pressure groups' attitudes, i.e., the U.S. maritime 
industries' positions on law of the sea issues), point toward Janis' unarticulated 
employment of policy scientists' phase analysis. 

Phase Analysis. Phase analysis is a breakdown of law as the comprehensive 
process of authoritative decision into component elements and sequences, even 
as the careful military commander plans an operation with explicit reference to 
timing, units of friendly and enemy forces involved, and so on. The policy 
scientist's phase analysis includes six or seven descriptive reference points: (1) 
participants (who interacts, from individuals through nations and the world 
community as a whole); (2) perspectives (how a participant views a problem, i.e., 
as a neutral, detached observer or as an advocate of a point); (3) situations (the 
physical circumstances of an interaction, which include geographic features (a 



56 Readings on International Law 

river being a more perceptible boundary, for example, than the territorial sea's 
limit); the place of the interaction on a time continuum; institutionalization, or 
the degree of organization in which interactions occur (the current "turmoil" 
over the law of the sea perhaps being an example); and crisis level, which may 
generate different expectations under varying intensities of crisis); (4) base or 
resource values-power, skill, enlightenment, wealth, respect, rectitude, affection, 
and well-being — that participants have at their command for achievement of 
desired ends in the legal process; (5) strategies-coercive or persuasive modalities 
through diplomacy, ideology, economics, or military force — for the manipula- 
tion of base values to achieve denied goals; (6) outcomes and (7) effects, short 
and long-term results of the process of interaction. 

Janis obliquely employs a similar but not as comprehensive analysis. With 
respect to his chapter on the United States, for example, he lists the almost 
bewildering cast of actors involved in decisions on the ocean policy process: the 
executive branch, Congress, non-governmental institutions, and their com- 
ponents. Curiously, reference to the federal judiciary with its capacity to fashion 
a federal common law to promote uniform international law norms, or to 
interpret the U.S. Constitution and the federal statutes and treaties that are the 
supreme law of the land, was omitted. Perspectives of the actors — from what 
viewpoints the participants speak — are indicated by inference, particularly in the 
chapter on the U.S. Navy. In this regard, Booth's more general analysis of the 
"players" and their characteristic perspectives should also be consulted. The 
geographic situations at stake — straits passage, width of the territorial sea, and 
deep seabed interests — are one of the central themes of the book. However, as 
indicated above, discussion of other dimensions of the geographic planes of the 
oceans as embedded in international law norms other than the law of the sea 
negotiations is limited. Power resources — particularly the strengths of the world's 
navies and equivalent of the U.S. Coast Guard — are given careful attention by 
Janis, but he does not discuss other important power variables such as the impact 
on deterrence decisionmaking of the other two legs of the Triad, land-based 
ICBMs and the Strategic Air Command, not to mention Army and Marine Corps 
forces that would be involved in the projection phase of any naval operation. 
The important factors of national wealth and the levels of readiness (skills) and 
training (enlightenment) are mentioned, but there is little attention given to those 

27 

often untangible, but nevertheless real, resources of respect, affection, etc. 

The strategy of military coercion or suasion is a great theme of Sea Power, 
which recognizes by implication strategies of diplomacy, (the LOS negotiations), 
economics (claims of the U.S. fishing industry), and ideology (implicit in Adm. 
S.G. Gorshkov's description of the U.S. Navy as "an instrument of imperialist 
policy"). The distinction between coercive strategy using military force, and 
persuasive military strategies, recognized by Cable and Luttwak, albeit with 
different terminology, would have sharpened the focus of inquiry. A similar 



Walker 57 

demarcation between coercive and persuasive economic, diplomatic and 
ideological strategies would have been helpful. Booth's chapter on "The Func- 
tion of Navies," with its triangular diagram of navies' diplomatic, military and 
policing roles, is perhaps the best illustration of the use of naval power (a resource) 
as a diplomatic or military instrument. His policy objectives of prestige, and 
standing demonstrations of naval power in distant waters as part of the manipula- 
tion objective, would be seen as ideological strategies by the policy scientist. He 
says little about navies' use in economic strategy, except under the policing policy 
objectives of resource enjoyment and contribution to internal development. If 
Booth had not limited his work to navies and naval affairs, doubtless he would 
have expanded on economic aspects of maritime strategy. His succeeding 
chapters develop these strategies and their interrelationships. There is a big 
difference, for example, between a persuasive economic strategy founded on 
subsidizing the U.S. merchant marine so that it can compete with foreign rivals 
and civil penalties, criminal fines and forfeitures, or restrictions on fishing and 
importation of illegally caught fish under the Fishery Conservation and Manage- 
ment Act of 1976. Outcomes and effects, the results of the interactive process, 
are of course dependent on the quality of treatment of the phases that precede 
them. Although not articulated as such, Sea Power docs recognize that the oceans 
decision process has products — e.g., the Fishery Conservation and Management 
Act, or the demise of the 3-mile limit — that are the result of this complex 
interrelated and interdependent process. 

Authority Functions. The policy scientist also perceives the threads of seven 
authority functions within the legal process: 

intelligence-gathering, the obtaining and supplying of information to the decision 
maker; promotion, the recommendations of policy; prescription, the promulgation 
of norms — as in legislation; invocation, the provisional application of a prescrip- 
tion — as by a grand jury indictment; application, the final application of a 
prescription — as by an appellate decision; termination, the ending of a prescription; 
and appraisal, the evaluation of the degree of policy realization achieved. 



28 



The Fishery Conservation and Management Act is an apt illustration. Regional 
fishery management councils, established by the Act, must prepare fishery 
management plans that must contain descriptive data and may contain catch limits 
and permit requirements. This illustrates the intelligence-gathering function. The 
promotion function begins when the Secretary of Commerce reviews and 
approves the plan, thereby promoting its policies. The prescription function is 
completed when the Secretary publishes the plan in the Federal Register, the 
official daily gazette of the U.S. Government. Invocation would occur when an 
authorized officer issues a citation, arrests anyone, or seizes fishing vessels or fish, 
subject to later trial of the case. The application function would occur when the 



58 Readings on International Law 

federal district courts try the case subject to appeal. Termination of a prescribed 
rule under the Act might occur when a new law of the sea treaty is ratified by 
the United States. The appraisal function of the Act includes reports by the 
Secretary of Commerce to Congress and the President, research, and reports by 
the fisheries councils to the Secretary. Sea Power was not written in a law-science- 
policy format, and hence has little explicit reference to the authority functions. 
Primary attention has been given to the intelligence, promotion, prescription 
and appraisal functions as Janis describes the background and development of the 
LOS negotiations. 

The Decision Process. Having completed this comprehensive matrix for 
describing the interaction of values in the context of phase analysis and authority 
functions, the policy scientist would proceed to the decision process, consisting 
of five steps or "intellectual tasks": (1) clarification of goals; (2) description of 
past trends; (3) analysis of conditions affecting those past trends; (4) projection of 
future trends, and (5) evaluation of policy alternatives. As Professor Moore has 
correctly observed, "These tasks are performed by all of us, implicitly or 
explicitly, when we make any decision."' With addition of feedback loops, this 
general process is found in all decisionmaking models. The basic military planning 
process employs similar methodology. Sea Power does state the goals or missions 
of the world's principal navies as articulated by their admirals. Should these be 
goals for the law of the sea as a whole, and should not a broader goal — national 
as coinciding with the general international ideals of the U.N. Charter perhaps 
reduced to a preference for human dignity — have been stated as the core ideal 
from which other subgoals descend and depend? Nearly all nations mentioned 
in Sea Power are parties to the U.N. Charter and therefore must be held 
accountable to its principles and purposes. Even if the analysis considers only the 
goals of armed forces or navies as the relevant focus, a generalized classification 
such as that employed by Booth might have been more comprehensive: 

(1) Projection of force functions 
(i) General war 

(ii) Conventional wars 

(iii) Limited wars and interventions 

(iv) Guerrilla wars 

(2) Balance of power functions 

(v) Strategic nuclear deterrence 
(vi) Conventional deterrence and defence 
(vii) Extended deterrence and defence 
(viii) International order 

(3) Diplomatic functions 

(ix) Negotiating from strength 
(x) Manipulation 



Walker 59 

(xi) International prestige 
(4) Domestic functions 

(xii) Border/coastguard responsibilities 

(xiii) Nation-building 
As Booth points out, such a classification "can only provide a guide and 
perspective for the specific analyses [,] . . . the ultimate aim when assessing such 
a subjective and contextual concept as utility." These goals, or value preferen- 
ces, are usually socially derived and are therefore strongly influenced by current 
conventional values. It would therefore behoove the military decisionmaker to 
attempt to approximate widely accepted societal ideas, beliefs, and goals (often 
crystallized with positive law or statements such as the U.N. Charter Preamble) 
as he postulates his goals and subgoals within the military decision process. 
Perhaps this is one reason why the Vietnam War "went wrong," in the view of 
some. 

Immediate past trends, and conditions affecting those trends, are described by 
Janis in the context of the 1958 law of the sea treaties and developments through 
1975. A look at deep-rooted past trends, such as those behind the traditional 
3-mile limit, and reasons for such trends, might have underscored his thesis as to 
the role navies and naval power may play in developing the law of the sea. Janis 
projects certain future trends, recites policy alternatives, and evaluates these 
alternatives in the light of their impact on the world's principal navies. Courses 
are charted "for the reconciliation of naval interests in the new international 
ocean order," but his preferred choice is not stated. 

Conclusions. As Professor Knight has observed, there are at least three schools 
of thought on the role of international law in national security policymaking: 

International law is a "pious fraud" and should have no effect whatever on the 
making of national security policy. 

International law should be considered as one among many relevant factors in 
determining national security policy. 

International law should be regarded as absolutely binding on the United states 
and determinative of all national security policy decisions. 

None of the authorities reviewed in this article, and particularly Janis' fine 
monograph, would adhere to the "pious fraud" view. The difference between 
the "absolutely binding" approach and the "among factors" theory is an issue of 
perspective and breadth of approach. Any good lawyer will say that you must 
obey the law. Janis would not quarrel with this; he is concerned with how some 
of the law of the sea came to be, the influencing factors on this law, and factors 
that can (or should) influence its development. He does omit certain sources and 
substantive parts of the law, and both the lawyer and the professional military 
man should be aware of this book's lack of a configurative legal approach. To 



60 Readings on International Law 

have done so would have required a treatise at least the size of Colombos* 
International Law of the Sea (over 850 pages of text). The policy scientist, and those 
engaged in other broad-based, multidisciplinary examinations of the problem of 
ocean space, would assert that international law is but one influential factor in 
the oceans policy process. The policy scientist would say that international law 
is but the outcome of the effective power process, only one aspect of the total 
social process. The policy scientist would therefore include those holding 
international law to be "absolutely binding" as part of a larger, more complex, 
configurative matrix. Booth recognizes the complex relationship between navies 
and foreign policy; the policy scientist insists that there is an equally complex 
relationship between policy, one outcome of which is law (a factor that must 
also be considered) and naval force, one aspect of military strategy, which has as 
its alternatives diplomacy, economics and ideology. Booth has carefully limited 
his book to a focus on navies and naval affairs and not maritime affairs. Sea Power 
would supply part of the mosaic for effective decisionmaking under this concept, 
and thus represents a valuable increment to the field from the policy science 
viewpoint. 

Even with these limitations, Janis has produced a fine book that should be of 
immediate assistance to the naval officer or the military lawyer who grapples with 
these complex problems of the law of the sea. Its quality gives promise of excellent 
contributions to future scholarship from the author. It would be hoped, however, 
that this article has reemphasized the complex nature of the "troubled common" 
of the altered ocean environment, whether seen from the aspect of the military 
commander, the lawyer, or the policy scientist. Not many military commanders 
can or should make policy or practice law; not many lawyers can or should make 
policy or wage war; not many policy scientists or decision theorists wage war or 
practice law. All three disciplines, and other professions as well can, however, 
learn from the processes of the others and appreciate the multifaceted issues of 
seapower and ocean law in the United States' third century. It is hoped, however, 
that the lawyers, analysts, policy scientists and concerned military officers will 
pool resources to assist governments in evolving a workable law of the sea, based 
on sound policies, for the new order of the oceans. 



Professor of Law, Wake Forest University 



Notes 

1 . Kenney, A Printer on S. G. Gorshkov's Sea Power of the State, Naval War College Review 94 (Spring 1977). 

2. Mr. Janis, a Princeton graduate and a Rhodes Scholar at Oxford University where he received the 
B.A. and M.A. in jurisprudence, taught international law and relations at the Naval Postgraduate School as a 
Naval Reserve officer, received his J.D. degree at the Harvard Law School and is now an associate of the New 
York law firm of Sullivan & Cromwell. 

3. To be sure, the distinction between passage of merchant ships and warships through straits was drawn, 
but there is no comparison of size of major maritime carriers as was done for the four great powers. 

4. MCDOUGAL & BURKE, THE PUBLIC ORDER OF THE OCEANS (1962). 



Walker 61 

5. WESTCOTT, MAHAN ON NAVAL WARFARE 285-90 (1941). Mahan's opponent was Elihu Root, 
prominent New York lawyer, Secretary of State, and a founder of the American Society of International Law. 

6. O'CONNELL, THE INFLUENCE OF LAW ON SEA POWER 189 (1975). 

7. Id. 

8. 175 U.S. 677 (1900). (International custom) 

9. 11 U.S. (5 Cranch) 116 (1812). (Sovereign immunity) 

10. BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW (2nd ed. 1973) and THE LAW OF 

Treaties (1961). 

11. Roy, b the Law of Responsibility of States for Inquiries to Aliens a Part of Universal International Law? Am. 
J. Int'l L. 863, 881-83 (1961). 

12. See the dissenting opinion ofjudge Alvarez in the Asylum Case (Colombia v. Peru), [1951] 1 .C.J. Report, 
pp. 266, 290. The "Calvo Clause," frequently found in international concession agreements with Latin American 
nations, states that a foreigner doing business there is entitled only to nondiscriminatory treatment; he consents to 
be treated only as the host state's nationals are treated. The foreign investor agrees not to seek the diplomatic 
protection of his own nation and submits questions arising from the agreement to local jurisdiction. 

13. TUNKIN, THEORY OF INTERNATIONAL LAW (Buder trans. 1974). For a historical perspective on 
Russian attitudes toward international law, see BUTLER, THE SOVIET UNION AND THE LAW OF THE SEA 
3-16 (1971). 

14. Janis, 77ie Soviet Navy and Ocean Law, Naval War College Review 52 (March-April 1974). 

15. Ken Booth recognizes this role of navies, albeit in a foreign policy/naval affairs, nonlaw context. 

16. See Janis, Dispute Settlement in the Law of the Sea Convention: The Military Activities Exception, 4, no. 1, 
Ocean Devel. & Int'l L. 51. 

17. Three collections of treaties and national legislation and regulations in this vast and rapidly expanding 
field are: Bureau of National Affairs, International Environment Guide (1975). BARROS & JOHNSTON, THE 
INTERNATIONAL LAW OF POLLUTION (1974), and BENEDICT, THE AMERICAN ADMIRALTY: ITS 
JURISDICTION AND PRACTICE (7th ed. 1973), the last containing treaties and legislation related to all 
maritime matters. 

18. Supra n. 4. 

19. The major schools of jurisprudence see law as: a positive command ("Positivism") from the sovereign, 
a prevailing concept in Anglo-American legal philosophy developed in the 19th century by John Austin, a 
former British Army officer; natural law, which viewed law as pointing to an ideal for the future, and which 
still finds currency among scholars, although it was in popular vogue in the 18th century and influenced 
internationalists such as Hugo Grotius or thinkers such as Thomas Jefferson, principal author of the United 
States' Declaration of Independence; legal realism or sociological jurisprudence, developed in this century to 
attempt to explain law in the context of the social sciences, a familiar exponent being Justice Oliver Wendell 
Holmes; the historical school, seeing law in the context of the historical development of a people, a philosophy 
primarily advanced by German thinkers; the Communist approach. This brief sketch is a vast overgeneralization, 
but is included to note the variety of theories involving law, even as there are many, and often conflicting, 
theories about military strategy and policy or military operations. 

20. BOOTH, NAVIES AND FOREIGN POLICY 136 (1977). 

21. Suziki, The New Haven School of International Law: An Invitation to a Policy-Oriented Jurisprudence, I Yale 
Studies in World Public Order 3, note 1 and p. 5, note 2 (1974); Moore, Prolegomenon to the Jurisprudence of 
Myres McDougal and Harold Lasswell, 54 Va. L. Rev. (1968), 186, p. 664, note 3 and p. 665, note 4. 

22. Moore, supra n. 21 at 669. 

23. McDougal, Authority to Use Force on the High Seas, 20 Naval War College Review (December 1967). 

24. See Bathurst, Crisis Mentality: A Problem in Cultural Relativity, Naval War College Review 55 
(January-February 1974) and Piersall, An Analysis of Crisis Decision-Making (Center for Naval Analyses 
Professional Paper No. 41, 1970). 

25. See WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS 281 (3rd ed. 1976). 

26. U.S. Constitution, art. VI, section. For the classic example of how a treaty may validly regulate activity 
that an act of Congress may not, see Missouri v. Holland, 252 U.S. 416 (1920). 

27. Compare Booth's recognition of the "interconnectedness" of land, sea and air forces. Booth, supra n. 
20 at 188-189. 

28. Moore, supra n. 21 at 671. 

29. Id. at 672. 

30. BOOTH, supra n. 20 at 224. 

31. Knight, The Law of the Sea and Naval Missions, U.S. Nav. Inst. Proc. 32 (June 1977). The article is a 
good survey of current law of the sea problems, arranged by legal issue, and urges that the United States "take 
all measures necessary to ensure that future legal developments concerning the use of ocean shore do not 
unacceptably retard [its] ability to carry out traditional and prospective missions of [its] naval forces," including 
setting precedents for rights of navigation before a crisis arises. 



Chapter 5 
Law of the Sea* 



Elliot L. Richardson 
(From an address to the students of the Naval War College, February 16, 1979.) 

This presentation is intended to discuss where the Law of the Sea Conference 
now stands. Because your bases of information are so varied, some basic 
background is in order. The United Nations Conference on the Law of the Sea 
that is now underway began in 1974. It is the third U.N. Conference on the 
Law of the Sea; the first in 1958 developed several conventions, one of the most 
important of which is the Convention on the Continental Shelf; the second one 
in 1960 attempted to deal with the high seas and territorial waters, and ended in 
failure when agreement on a 12-mile territorial sea failed by one vote. The 
present one began out of the realization that there needed to be comprehensive 
extension and revision of customary international law to accommodate a series 
of developments that had been emerging and gaining force over a decade or 
more. 

There were in the first place a number of technological developments that 
had to be recognized; for one thing, the advancement of technology involved 
in drilling in deep water in the Continental Shelf. This presented a problem, 
partly because the Continental Shelf Convention of 1958 adopted an ex- 
ploitability test to define the outer limits of national jurisdiction. A nation's 
jurisdiction over the shelf under that convention extends as far as technological 
capacity permits the exploitation of the resources of the shelf. And that, of course, 
has meant that the boundary has been extending progressively seaward as 
technological capacity has evolved. But in the meanwhile it also had become 
apparent that it was only a matter of time until the capacity would also exist to 
mine the resources of the deep seabed. These are, for the foreseeable future, 
resources of manganese nodules originally discovered by H.M.S. Challenger over 
100 years ago. These black, potato-sized objects, found at depths of 14,000 feet 
to over 20,000 feet on the bottom of the ocean around most of the world, are 
valuable because they contain significant quantities of nickel, copper, cobalt, and 
manganese. Devices were under development that could pick nodules up from 
the sediment where they lay, pump them to the surface, and extract the minerals. 

* Reprinted from the Naval War College Review May-June 1979. 



64 Readings on International Law 

Because the question of management and control of these resources requires 
definition of the area in which such control would be exercised, it became 
necessary to define the boundary between national jurisdiction over the shelf and 
international jurisdiction over the seabed. In the meanwhile there had been 
increasing pressure on the ocean environment with the threat that unless effective 
international cooperation could be achieved, the living resources of the ocean 
could be subject to irreparable damage. 

Coastal states in various ways were beginning to feel pressure on the protein 
resources within their coastal waters, and there is no more dramatic example of 
this than the virtual destruction of some fishery stocks on Georges Bank off Cape 
Cod as the result of overfishing, largely by Soviet vessels. But other countries 
also felt that the need for some form of management and control over these 
fishery stocks required the extension of coastal States' jurisdiction. As much as 
30 years ago a few countries in South America proclaimed coastal State jurisdic- 
tion through the extension of the territorial sea out to 200 miles. From the 
standpoint of freedom of navigation and overflight there was the risk that other 
countries would follow suit, thereby, if not denying, at least creating very serious 
complications for freedom of navigation and overflight within the 200-mile zone. 
There was agreement that control over the problems of pollution as well as 
fisheries required the updating of the ancient definition of the territorial sea by 
extending it from 3 miles to 12. A consequence of this, in turn, would be that 
some 115 straits around the world would be overlapped by territorial seas. 

As is commonly known, the legal provisions governing navigation and 
overflight over a territorial sea are defined in terms of "innocent passage." 
Innocent passage means, in effect, that vessels transiting the territorial sea must 
do so expeditiously and without engaging in any such activity as military exercises 
or fishing. But innocent passage does not embrace the submerged passage of 
submarines nor does it include any right of overflight. The overlapping of straits, 
therefore, could result in the denial of any legal right for a submerged submarine 
to enter the Mediterranean through the Strait of Gibraltar or to travel submerged 
through any other major strait, like the Strait of Malacca or the Strait of Lombok. 
Some 30 percent of the ocean area could be denied freedom of navigation and 
overflight if jurisdiction over the 200-mile zone for the protection of fisheries 
and other resources also carried with it the legal consequence that such waters 
were regarded as territorial waters rather than waters subject to high-seas 
freedoms. This extension of coastal State jurisdiction also could present problems 
for the free conduct of maritime scientific research, and that has in fact been one 
of the concerns of the Conference. 

It was recognized that because of the problems that would inevitably arise in 
the application of broad new regimes, there needed to be established a system of 
binding dispute settlement. The text now before the Conference would, if 



Richardson 65 

adopted, be the first major treaty to incorporate a comprehensive system of such 
settlement. 

We now have before us, following the Seventh Session of the Conference, 
which took place in two stages during 1978 (8 weeks in Geneva and 4 weeks in 
New York), a document known as the Informal Composite Negotiating Text 
(ICNT). It is called a negotiating text because it has never been formally negotiated. 
It is called a composite negotiating text because at the end of the Sixth Session, in 
1977, the separate negotiating texts that had up to that point been developed by 
the committee chairmen were brought together in a single document. It is called 
informal because all of the negotiations that have taken place up to now have 
sought consensus; there have been no formal proceedings of the Conference and 
no votes under the rule calling for affirmative action by a two-thirds majority 
vote. And it will only be when the Informal Composite Negotiating Text has 
gone through a new edition and has then been adopted as a draft treaty that we 
will for the first time begin to proceed formally. 

It remains to be seen whether the Conference will ever achieve that stage. 
On the one side, the overwhelming majority of all issues has been resolved. 
Perhaps 90 percent of the some 400 articles and 200 pages of text are now the 
subject of broad consensus. Within that consensus are almost all of the provisions 
that vitally affect navigation and overflight. But before discussing those 
provisions, some of the unresolved issues should be mentioned. 

Putting aside for the moment the problem of deep-seabed mining, four major 
issues have been the subject of negotiation in specially constituted negotiating 
groups since the spring of 1978. One group has been charged with the question 
of how to accommodate the interests of the landlocked and geographically 
disadvantaged States (LL/GDS) that have been excluded from participation in 
fisheries beyond 3 miles and inside 200 miles by the achievement of consensus 
on the establishment of 200-mile economic zones or fishery zones. The landlock- 
ed among the LL/GDS also have had concerns with transit over the territory of 
States lying between themselves and the sea. These questions have now come 
close to the point of as good an accommodation as it is reasonable to hope for 
between the competing interests of the LL/GDS on the one side and the coastal 
States on the other. 

A second negotiating group has been concerned with problems of dispute 
settlement with respect to access to fisheries in the exclusive economic zone by 
third countries; issues, for example, with respect to the fairness and the substan- 
tiality of the basis upon which coastal States have determined what is the optimum 
sustainable yield of a particular fisheries stock. On that, in turn, depends the share 
of the fishery that the coastal State itself can exploit effectively and thus the surplus 
that is available for allocation among other countries. 

A third negotiating group has been concerned with an issue I've touched on 
already — the definition of the outer limits of the Continental Shelf. Here we 



66 Readings on International Law 

have three competing options: one, put forward mainly by the Arab countries, 
would limit coastal States* jurisdiction to the same boundary as the exclusive 
economic zone — that is, 200 miles. A second, proposed by the Soviet Union, 
would establish a fixed mileage limitation of 300 miles, or perhaps more, from 
the baseline near the short, but in any case, some definite and relatively easy 
ascertainable limit. The third approach is one advocated by the broad-margin 
States, mainly Great Britain, Ireland, Norway, Canada, Australia, New Zealand, 
India, and Argentina — the so-called Irish formula. Under the Irish formula there 
would be applied a sediment test — that is, a measurement of the depth of the 
sediment overlying the rock stratum beneath. The Irish formula, believe it or 
not, provides that the limit of a coastal States' jurisdiction is the point at which 
the depth of the sediment is 1 percent of the distance from the foot of the 
continental slope! And on the determination of this point, of course, turns 
jurisdiction over many billions of dollars worth of hydrocarbons. 

The fourth of these four nonseabed mining negotiating groups is concerned 
with dispute settlement with respect to the boundaries of the exclusive economic 
zone and the Continental Shelf between opposite and adjacent States. Here the 
main competing doctrines are those of equidistance and the recognition of 
so-called "equitable principles." For every country that benefits from the 
application of the principle of equidistance, there is an equal and opposite country 
that would benefit from equitable principles. For example, equidistance applied 
without qualification would give Canada quite a lot of Georges Bank, although 
Georges Bank lies east and somewhat south of Cape Cod. It came as a great 
surprise to the fishermen of New Bedford that grounds they have traditionally 
fished upon might turn out to belong in considerable part to Canada. So at least 
with respect to that dispute, the United states is an advocate of equitable 
principles. 

There were, as of early 1978, two other major concerns not embraced within 
these four negotiating groups in which the United states has a particular interest: 
one is in protection against marine pollution, and we were able to gain some 
significant improvements in those provisions of the text in the two negotiating 
sessions in 1978 (with the help in part of the Amoco Cadiz disaster, which once 
again illustrates the proposition that it's an ill wind that doesn't blow some good). 
The other major outstanding concern for the United States not embraced in any 
present negotiating group, but falling within the jurisdiction of Committee Three 
of the Conference, is the text on marine scientific research. There we are trying 
to offset some of the negative effects of a text that establishes a consent regime 
for the conduct of scientific research within the 200-mile zone and the coastal 
State's jurisdiction over the Continental Shelf. We have, in the meanwhile, 
worked hard for some improvement of the language dealing with the protection 
of marine mammals. 



Richardson 67 

Turning now to seabed mining, we have a host of difficult and unresolved 
issues. Whereas in the case of navigation, overflight, innocent passage, transit 
through straits, etc., the Conference has been dealing with the codification, 
evolution, and adaptation of customary international law, in the case of seabed 
mining we have been seeking to draft a constitution for a new kind of 
international organization. This organization would have responsibility for access 
to and management and control over the resources represented by the manganese 
nodules. This management and control would be exercised by an International 
Seabed Authority with two governing bodies: an Assembly in which all members 
would be represented on a one-nation, one-vote basis and a Council, a smaller 
body, in which there would be representation of such particularly concerned 
interests as the seabed miners, major consumers of the metals involved, and the 
land-based producers of those metals who are concerned by the potential damage 
to their economies resulting from competition by seabed mining. 

We still face exceedingly difficult problems with respect to how these interests 
will be represented and how votes will be taken in the Council. There are 
problems with respect to the creation of an operating entity for the International 
Seabed Authority that will be called "The Enterprise.'* The Enterprise will in 
effect be an international corporation created to conduct seabed mining. There 
have been problems of how it would be financed and how it would acquire the 
necessary technology to engage in seabed mining. The land-based producers have 
been able to persuade the Conference that they need the protection of a 
production ceiling on seabed mining, and that leads to a number of problems 
with respect to the availability of a sufficient number of contracts for seabed 
mining for member countries, and their State-sponsored entities, including 
private companies. 

There are problems of how to fix the schedule of payments to be made by 
companies to the Authority in the form of initial fees, royalties, and profit-shar- 
ing. There are a great many other problems also raised by the necessity of creating 
a structure that can deal with all aspects of an entirely new, risky, and very 
expensive industry. It is estimated that a single seabed mining project will cost 
up to a billion dollars, including the costs of prospecting, exploration, and 
technological development as well as the construction of seabed-mining ships, 
transportation vessels, and shore-based processing facilities. 

Here, more clearly than anywhere else in the Conference, we have a cleavage 
between north and south, developed and developing countries. The Group of 
77, representing the developing countries, is seeking a maximum role for The 
Enterprise, and the industrial countries are insisting upon maximum oppor- 
tunities for their companies to obtain contracts with the Authority and security 
of tenure under those contracts. The seabed-mining provisions of the treaty have 
tended to dominate public attention in the United States recently, although they 



68 Readings on International Law 

are only a part of the whole, and this part needs to be looked at in the context 
of the other interests at stake. 

Because many of you are concerned with freedom of navigation for commer- 
cial and naval vessels and with freedom for aircraft to fly over straits and economic 
zones, I'd like now to describe more fully where the Conference stands on these 
subjects. With minor qualifications, these aspects of the proposed comprehensive 
treaty have been brought to the point of substantial consensus. In the case, for 
example, of the territorial sea, it has been agreed that it will be extended to 12 
miles and that the problem of overlapping straits will be dealt with through a 
new regime of transit passage. This regime, in effect, will preserve the principal 
legal aspects of the high-seas passage that exists where there remains a high-seas 
lane between the 3-mile territorial seas on each side of the straits. 

In the summer of 1977 we had intense negotiations over the issues of freedom 
of navigation and overflight in the 200-mile economic zone, and we now have 
a text which makes clear that the freedoms of navigation and overflight that apply 
within the 200-mile economic zone are the same freedoms of navigation and 
overflight that apply to the high seas beyond the 200-mile economic zone. 

One more new concept that emerged early in the Conference is that of 
"archipelagic waters." Its meaning is that countries comprising a group of islands, 
such as the Philippines or Indonesia, would be allowed, in effect, to declare that 
the waters embraced by these islands are the equivalent of territorial seas. This, 
of course, would raise the same problems of freedom of navigation and overflight 
that the extension of territorial waters over straits would raise. Here it has been 
agreed that lanes open to free navigation and overflight will be established and 
defined by courses and distances from point to point through the archipelagic 
waters, with a permitted deviation of a certain number of miles on each side of 
the axis thus established. 

The interests of the coastal States in establishing and enforcing marine 
environmental-protection measures have been carefully balanced against 
maritime interests in preventing the harassment of navigation. It has also been 
agreed that the application of binding dispute-settlement procedures would be 
subject to a military exception. 

In general, the world has a vital interest in establishing the rule of law in all 
these respects, and observance of the rule of law has no greater importance for 
any affected group than it does for those of us who are charged with responsibility 
for the preservation of navigational freedoms. When it comes to the question of 
where ships and airplanes can legally go, it is important to have clear rules and 
thus be able to avoid the conflicts that could otherwise arise. The potential for 
conflict does more than poison good relations with the countries affected. It 
could also compel the allocation of resources to vindicate asserted rights in ways 
that would impair the availability of these resources for their primary purposes. 



Richardson 69 

Besides that, I think we see today that the community of nations has reached 
a point at which the sense of independence and autonomy felt by many countries, 
perhaps all countries, is such that simply to be big and strong does not confer the 
power to act in disregard of the interests of smaller States. We no longer live in 
a world in which gunboat diplomacy is tolerated, and the establishment of a clear 
and accepted regime of the ocean that includes adequate recognition of maritime 
interests can help us to escape the necessity of choosing between accepting the 
undesirable restriction of navigational freedoms or asserting them only at the cost 
of the destruction of good relations and the charge of behaving like a bully. 

It is, I think, impossible now to be confident that the Conference will succeed 
in resolving the remaining issues before it. I hope it can. Like most participants, 
I believe that the success of the Conference would make a major contribution 
to the rule of law. We also believe that this, perhaps the most ambitious 
negotiating effort ever undertaken by the world community, would, if successful, 
enormously strengthen confidence that complex problems cutting across national 
lines are capable of negotiated solutions. Conversely, the failure of the Con- 
ference would be a serious setback to this hope. 

After a 3-week intersessional meeting early this year, negotiations resumed on 
19 March. Many countries are increasingly feeling the strain of allocating 
top-level people to the Conference. The prospect that the United States and a 
few other countries may go forward with unilateral seabed mining legislation has 
also contributed to a sense of urgency toward bringing the work of the 
Conference to the earliest possible close. And though the intersessional meeting 
scored no dramatic gains, it was successful, nevertheless, in the somewhat ironic 
sense that it sharpened the remaining divergencies in a way that exposed the 
underlying economic realities with a minimum of ideological and political 
rhetoric. We have, in a sense, positioned ourselves for a major effort to see 
whether we can close the remaining gaps. I hope we can, and yet I cannot 
confidently predict it. For my own part, I find the effort exceedingly difficult, 
demanding, complex, and often frustrating, but I can assure you that it is never 
boring. 

Because the answers to questions following Ambassador 
Richardson's presentation cover points not raised in the address, they 
are included here. 

Do you have any plans to go ahead with a treaty, to get it signed and to get agreement 
on 90 percent of the issues, even if you can't achieve consensus for such things as seabed 
mining and a few other points? 

From the standpoint of the United States and other major maritime countries, 
it would be of great benefit to be able to consolidate in a treaty the matters that 



70 Readings on International Law 

I have already identified as subject to broad agreement. But the problem is that 
from the outset it was conceived that this Conference would seek to negotiate 
a package deal in which maritime interests were balanced against resource 
interests. Insofar as the developing countries, represented in the Group of 77, 
considered navigational interests as mainly of concern to the developed maritime 
and naval powers, they have continued to insist that their compensation for these 
concessions would have to take the form of agreement on a seabed-mining 
regime in which all countries would be represented and in which all countries 
would share. As a practical matter, it is virtually impossible to visualize any 
document coming into force that deals with the navigational issues without also 
comprehending the resolution of these resource-related problems. So, while it's 
conceivable that if the Conference failed, there might be an interval in which 
the world community paused and regrouped and then tried again on a basis 
drawing on pieces of the present effort, it's certainly not possible that we can 
simply lop off seabed mining, for example, and then get enough ratifications to 
bring a treaty into force dealing with the remaining issues. 



What is the U.S. position on deep-sea mining? 



The U.S. position on deep-sea mining is that our companies must have assured 
opportunity to engage in seabed mining under reasonable terms and conditions, 
including security of tenure under their contracts with the International Seabed 
Authority, and a fair chance to recover their investment and achieve a fair return. 
The access that we will have, of course, is dependent upon negotiating a regime 
that is capable of attracting the necessary investment. Nobody is now prepared 
to put any money into seabed mining except four multinational consortia and 
one French group — the four are multinational consortia headed by the U.S. Steel 
Company, Kennecott, Lockheed, and the International Nickel Company of 
Canada. Each of these consortia includes components belonging to other 
industrial countries — -Japan, Great Britain, Germany, the Netherlands, and 
Belgium, in varying combinations. The heart of the problem is designing a regime 
that will justify risking up to a billion dollars in a single seabed-mining project. 
Our constant effort is to convince the developing countries that it is in their 
interest, as well, to agree on a seabed-mining regime that can attract investment. 
I don't know how I have failed thus far even to mention "the common heritage 
of mankind." This phrase goes back to a speech in 1967 by Arvid Pardo, then 
the Permanent Representative of Malta to the United Nations, which led to the 
adoption in 1970 of a U.N. Resolution containing a declaration of principles 
designed to govern seabed mining, including the declaration that the resources 
of the deep seabed constitute the common heritage of mankind. Our message is 
essentially that the common heritage of mankind will remain indefinitely without 
use to humanity in the vast depths and enormous pressure and cold of the ocean 



Richardson 71 

floor unless the seabed-mining regime that emerges from this Conference is 
capable of giving reasonable confidence to investors. Our task in Geneva will be 
to get agreement on the basis of the understanding that that confidence is a 
precondition for breathing life into the concept of the common heritage. 

Do you feel that if we moved ahead to exploit unilaterally the seabed resources under 
the guarantee of the U.S. Government that that would perhaps spur an agreement among 
the Group of 11 for a more universal enterprise for the exploitation of those resources} 

It is hard to tell what effect the final passage of seabed-mining legislation by 
the United States would have on the Conference. There are those who warn 
that it would have a highly destructive effect and trigger the assertion of unilateral 
national claims to the seabed itself. On the other hand, the U.S. legislation now 
pending, which almost passed the Congress in 1978 only to be hung up at the 
last moment in the Senate, is designed to be consistent with the general approach 
of the ICNT and provides for the setting aside of payments by the mining 
companies recognizing the legitimacy of the claims of other countries to share 
in the proceeds. The legislation would be superseded by a treaty, and because 
seabed mining cannot now get underway on a commercial scale before 1985 at 
the earliest, that would allow a treaty to be negotiated well before that date. So 
far as the effect on the negotiations is concerned, I think that the awareness that 
seabed mining must be regarded as inevitable (if not under a universal convention, 
at least under reciprocal national legislation) has served to make the participants 
in the Conference aware that time is not necessarily on their side. And I think 
this has contributed to the sense of urgency that now exists. 

Enforcement of these laws seems to be a major problem. To what extent does the role 
of national navies enter in your discussion as far as enforcing certain laws that you are 
proposing? 

I think the role of navies needs to be looked at primarily in terms of the exercise 
of nationally claimed rights, including rights that the countries to which those 
navies belong believe to rest upon a solid foundation of international law. In the 
absence of a treaty (and even under the treaty) it is also important to deliver clear 
and unmistakable protests against national claims inconsistent with international 
law, whether that law belongs to the body of customary international law or has 
been made part of a universal convention. Such protests must be backed up by 
the consistent exercise of the internationally recognized right, and in a situation 
in which the exercise of a right is subject to challenge, there would need to be 
the readiness to go forward nevertheless. This would necessitate appropriate 
preparation to meet the possibility of any such challenges. Beyond that, of course, 
there is the potential for bringing to bear various forms of international proceedings 



72 Readings on International Law 

including, even in the absence of the treaty, an international court of justice or 
arbitration. Under the treaty there would be a whole array of legal means to 
vindicate these rights. I think, therefore, that if firmness, intelligence, and 
consistency is applied to the assertion of rights that do rest upon a broad basis of 
international law, it follows that there should be minimal occasion to have to 
resort to any form of police action in their enforcement. 

Address by Ambassador at Large Elliot L. Richardson to the classes of the Naval War College 
on 16 February 1979. 



Chapter 6 
Law and Conflict at Sea* 



Lieutenant Roger D. Wiegley 
JAG Corps, U.S. Navy 



Whether or not the negotiating texts of the Law of the Sea Conference result in a "new" 
law of the sea, it is becoming clear the "the potential for conflict between developing coastal 
states and the naval powers is significant enough that the latter should begin to develop policies 
for meeting challenges to their military uses of the oceans." This paper reviews some of the 
areas of potential conflict and suggests several points to be considered in the development of 
policy. 

There is a burgeoning literature that deals with military implications of the 
new law of the sea regime. Within that literature, the range of predictions 
could hardly be wider. One author has argued that the rules emerging from the 
Third United Nations* Conference on the Law of the Sea (UNCLOS III) signal 
the exclusion of naval forces from all but friendly waters. But another 
knowledgeable writer has hypothesized that naval diplomacy will become more 
effective because deployed forces will be able to cross new symbolic "borders.*' 
Despite the disparate conclusions, however, the analysts have with few excep- 
tions projected a new era in which "freedom of the seas" will be a concept under 
ever-increasing challenge. 

Ironically, the negotiating texts produced at UNCLOS III do not themselves 
bode ill for the naval powers. In the latest text, the Revised Informal Composite 
Negotiating Text (RICNT), only two provisions are clearly restrictive from the 
perspective of the naval strategist: the 12-mile territorial sea and the recognition 
of a special status for waters lying between the islands of archipelagoes. Yet even 
before the RICNT, the 12-mile territorial sea was becoming, if it was not in 
fact, a custom of international law, and the concept of "archipelagic waters" was 
also gaining support. 

Naval Concerns. What, then, has caused so much concern to the proponents of 
unrestricted mobility for naval forces? Two things: first, that a convention similar 
to the RICNT, if adopted, would become a source of dispute rather than an 
established order and second, that a new convention would simply be the first 
in a progressive series of demands by developing coastal States. Whether such 

* Reprinted from the Naval War College Review January- February 1980. 



74 Readings on International Law 

pessimism is warranted remains to be seen but the picture has probably been 
overdrawn. Undoubtedly there will be disputes and adjustments in the new 
order, just as there were prior to UNCLOS III, but predictions of frequent 
challenges to the movement of naval forces exaggerate the importance of 
international law. Developing coastal states are not likely to provoke a confron- 
tation with one or more naval powers merely because the law of the sea permits 
a new range of coastal state demands. The relative importance of legal rules, 
particularly those that are new or open to interpretation, diminishes as the risk 
of confrontation increases. Nonetheless, conflicts will occur and international law 
will affect the way the conflicts are perceived by both participants and non-par- 
ticipants. It is important, therefore, to consider some of the areas in which coastal 
state claims may lead to disputes with naval powers. 

International Straits. Innocent Passage. The law of the sea development that has 
aroused the most comment is the effect on international straits of broadening 
territorial seas from 3 to 12 miles. There are approximately 116 straits not 
currently overlapped by 3-mile territorial seas that would be spanned by 12-mile 
territorial seas. 

Obviously, straits are significant in naval planning. They frequently offer the 
only expeditious route to an area of political or military crisis, and even in 
situations of less import their use is often an important cost consideration. 

As mentioned earlier, the 12-mile territorial sea was gaining currency even 
before UNCLOS III. Hence the problem of transit through international straits 
is not a product of the current law of the sea negotiations, except to the extent 
that those negotiations have accelerated an inevitable problem. What the 
negotiations have done is attempt to clarify the rights of straits' users, particularly 
foreign naval units, as well as the rights of straits' States. Prior to UNCLOS III, 
the rule of law applicable to territorial seas — including territorial seas within 
straits — was that of innocent passage, i.e., the coastal State cannot interfere with 
passage that poses no threat to its "peace, good order, or security." 

While the principle of innocent passage creates a general expectation of 
unimpeded transit through territorial seas, a number of facts qualify the right of 
innocent passage for warships. First, submarines must transit on the surface and 
show their flag. Second, there is no right of overflight for aircraft. Third, the 
coastal State decides when its "peace, good order, or security" has been 
threatened and it can take steps to prevent passage that is not innocent. 
Moreover, the coastal State, if it determines that its security is threatened, can 
temporarily suspend the right of innocent passage although it cannot suspend 
the right of innocent passage through international straits. Finally, a small but 
growing number of States now require notification or permission as a prerequisite 
for innocent passage of foreign warships. 



Wiegley 75 

If transiting naval forces wish to avoid the restrictions inherent in innocent 
passage, they can do so simply by remaining outside territorial seas — a measure 
that usually has no effect on mission objectives. Of course, the option of avoiding 
territorial seas is not available where the latter enclose international straits, and 
absent that option the potential for conflict increases significantly. 

Transit Passage. The issue of passage through international straits was tentatively 
compromised at UNCLOS III through the creation of the concept of transit 
passage. Under this concept, submarines are not required to surface within straits 
and aircraft are permitted to fly over straits without first obtaining the permission 
of the coastal State. In addition, the RICNT specifies that the right of transit 
passage cannot be suspended. 

Two questions become relevant at this point. First, what will govern passage 
through straits if UNCLOS III fails to produce a convention? And second, is the 
concept of transit passage adequate to prevent confrontation over the use of straits 
by naval forces? 

If UNCLOS III does not result in a law of the sea convention, a number of 
States probably will assert claims that they feel are justified by the majority view 
reached during the Conference negotiations. For example, some States may claim 
a 12-mile territorial sea and a 200-mile economic zone on the basis of the 
tentative Conference agreement on those two issues. If such claims are in fact 
made, it will be because the final UNCLOS III negotiating text has more 
legitimacy than the law it was designed to replace, even though the former would 
have been created for negotiating purposes only. It is admittedly incongruous to 
say that a new legal rule can be justified by reference to unsuccessful negotiations, 
but in the situation postulated logic may have to accede to events. Should that 
happen, the areas of broadest agreement at UNCLOS III will become a new 
source of international law, at least to the extent of explaining the impetus and 
general acceptance of post-Conference developments. 

Given, then, the possibility of unilateral claims arising from UNCLOS III that 
affect international straits, the naval powers can look to the same source of law 
to justify adherence to the rules of transit passage. The latter, after all, represents 
a fundamental compromise accepted by the coastal States in exchange for the 
recognition of important prerogatives in the area of ocean resource exploita- 
tion. To be sure, the new rules give maritime states large economic zones of 
their own, larger than those of developing coastal States, but overall the maritime 
States stand to lose more economically than they gain given the technology gap 
and the realities of ocean use prior to UNCLOS III. Thus, if developing coastal 
States pursue the advantages offered by a regime modeled after the RICNT, the 
naval powers are entitled to recognition of their interests as well, particularly 
transit passage through international straits. 



76 Readings on International Law 

The second question raised by the concept of transit passage is whether the 
rules embodied in the RICNT are adequate to prevent confrontation over the 
use of straits by naval powers. The problem here is that transit passage is, by 
definition, transit through territorial seas within straits. As stated earlier, there is a 
growing trend among coastal States to require warships to give advance notifica- 
tion before entering their territorial seas. The RICNT is silent on the issue of 
advance notification. Presumably, some coastal States may attempt to impose a 
notification requirement for passage of military vessels through territorial seas 
within international straits. Such a requirement would clearly be objectionable 
to the naval powers; it would defeat the purpose of submerged passage for 
submarines and it could also result in the disclosure of sensitive deployment data 
to unfriendly forces. Perhaps more importantly, advance notification implies a 
measure of control by the coastal State, inasmuch as notification makes little sense 
except as a form of requesting permission, and an acceptance of the implication 
could lead to an attempted exercise of actual control by the coastal State. Despite 
the RICNT, then, the problem of advance notification is lurking in the 
background, and it threatens to become a source of disagreement whatever the 
outcome of UNCLOS III. 

Economic Zones. In addition to the general problem of passage through straits, 
the new law of the sea regime could witness disputes over foreign military 
activities within a nation's 200-mile economic zone. Seventy-six nations, includ- 
ing the United States and the Soviet Union, have announced a 200-mile 
economic zone or a 200-mile fishing zone, and the coastal States that have not 
yet proclaimed a 200-mile zone will probably do so if UNCLOS III fails to 
produce a convention. 

At one time there was considerable disagreement over whether coastal States 
would attempt to aggrandize their limited jurisdiction in the economic zone into 
claims of full sovereignty. This so-called "creeping jurisdiction" is now a 

1 8 

generally accepted proposition among writers on ocean affairs, although the 
nature and timing of the "creep" are too uncertain to permit useful speculation. 
In the abstract, it is possible to describe three factors that could lead to claims of 
sovereignty over economic zones. First, economic advantages tend to generate 
protectionist demands, leading ultimately to the conclusion that the whole range 
of direct and indirect threats can be adequately dealt with only if the sovereign 
has the broadest possible discretionary power. Second, as coastal States develop 
their navies to provide enforcement capabilities, there may be a growing 
presumption that control is proof of sovereignty. And third, claims of sovereignty 
may be perceived as a convenient vehicle by which developing States can 
overcome political frustration and a sense of impotence in international affairs. 
Whatever its origin, the phenomenon of creeping jurisdiction is likely to 
occur, although it will probably manifest itself differently in various parts of the 



Wiegley 77 

world. Some economic zone restrictions, because of their location, will impinge 
upon naval operations more then others, thereby creating the prospect of 
confrontation in one zone while other, more restrictive, zones are ignored by 
the naval powers. 

Restrictions. It is unlikely that a coastal State would attempt to restrict passage 
through an economic zone. Such a radical position would create a very high risk 
of confrontation with little chance of support from any but the most extreme 
elements of the international community. By contrast, limited restrictions may 
offer coastal States an opportunity for political visibility without a corresponding 
loss of credibility. For example, any of the following naval activities could be 
challenged in a foreign economic zone on the basis of general principles reflected 
in the RICNT: weapons testing, military oceanography, intelligence collection, 
submarine patrols, or maneuvers designed to influence the political affairs of the 
coastal State. The challenge could take the form of an official pronouncement 
directed to the government of the unwelcome vessels or a warning issued directly 
to the offending warships. 

There are other restrictive claims that would also increase the potential for 
conflict at sea but, like creeping jurisdiction, the possibilities are too uncertain 
to permit more than a brief mention. Such claims as special military zones, 
"closed" seas, unique baselines for territorial seas, and enclosure of wide bays 
have all been announced in the past by various coastal States, and there is no 
reason to believe that a new law of the sea convention would either cause the 
old claims to be rescinded or eliminate the prospect of new ones. 

In the aggregate, the potential for conflict between developing coastal States 
and the naval powers is significant enough that the latter should begin to develop 
policies for meeting challenges to their military uses of the oceans. Detailed legal 
analysis will have to await the actual challenges, but it is not too soon to consider 
some of the legal dimensions of various responses. At stake is more than 
unrestricted mobility for naval vessels. Equally important is the moral credibility 
of the naval powers involved, particularly if the threat or use of force becomes 
the final arbiter of a dispute. 

Conflict Resolution. The numerous articles dealing with problems of naval 
mobility in the new ocean regime have generally attempted to deal with potential 
causes of dispute, but scant attention has been paid to the problems of dispute 
settlement. In this area writers have seemed content to draw obvious conclusions 
about the need for greater diplomacy and the importance of negotiated agree- 
ments. The difficult questions remain — the questions that arise when diplomacy 
and negotiations fail. 

The settlement of disputes has not been ignored at UNCLOS III. A significant 
portion of the RICNT deals with dispute settlement, even though the drafters 



78 Readings on International Law 

could have left the problems of adjustment to such existing mechanisms as the 
International Court ofjustice (I.C.J.) or to ad hoc arbitration techniques agreeable 
to the parties involved. One of the factors motivating Conference negotiators to 
address problems of dispute settlement may have been the unwillingness of 
nations to submit disputes to the I.C.J, for resolution. The I.C.J, hears few cases 
of real significance, and there is no reason to believe that law of the sea problems 
would become an exception to that pattern. Perhaps as a consequence the 
RICNT contains a number of provisions designed to compel signatory nations 
to submit irresoluble disputes to one of the third-party settlement mechanisms 
enumerated in the text. Significantly, however, there are a few optional excep- 
tions to the requirement for compulsory settlement of disputes. One such 
exception would permit signatory nations to withhold from compulsory settle- 
ment disputes involving military activities. While that may seem to be an 
exception larger than the rule, it expresses an important reality of international 
politics: nations will not entrust their military options to third-party tribunals 
because of the risks, however small, of rulings adverse to their own perceptions 
of their national security. 

One author has suggested that the United States should not support or adopt 
the "military activities" exception in the RICNT because, while ostensibly 
favorable to the naval powers, it could be used by coastal States to avoid judicial 
review of restrictive jurisdictional claims. According to this view, compulsory 
settlement of disputes involving naval activities would result in recognition of 
the rights of the naval powers because the strongest legal position is one that 
follows from the literal interpretation of an international convention. While that 
might be true in an impartial context, it cannot be assumed that a third-party 
tribunal will render decisions free from the vicissitudes of international politics. 
The military activities of any highly developed State reflect, among other things, 
that State's assessment of its own security interests; it is unrealistic to expect that 
such interests would be delegated to a decision-making body with possible biases 
against powerful or affluent States. 

Naval power is a highly visible and effective expression of national strength. 
As such, it symbolizes for some nations the inequities in world power which, in 
their view, are no more justifiable than the colonial empires that were built on 
naval supremacy. It is important to recognize, however, that whatever the 
advantages of naval power in bygone eras, it is still an important element in the 
overall balance of world forces. Any change in the availability of the oceans for 
military purposes would inevitably affect some navies more than others, and it 
would thereby alter the level of tension known as "world order." One can say, 
of course, that international decision-making bodies should be allowed to decide 
what is in the best interests of world order, but such bodies cannot contain the 
unpredictable imbalances that they might engender. 



Wieglsy 79 

If naval powers choose not to submit to compulsory settlement of disputes 
involving military activities, they may indeed lose the opportunity to have their 
prerogatives recognized by an international tribunal. Consequently there may be 
restrictive coastal State claims that are never "adjudicated," thereby adding an 
element of uncertainty to the legality of any response by a naval power. Such 
uncertainty is a small problem, however, compared with the risks of third-party 
decisions affecting the military capabilities of the superpowers. And, as a practical 
matter, legal uncertainty always accompanies conflict, even in the face of relevant 
judicial decisions — distinguishing factual situations is the lawyer's forte. Thus the 
naval powers have little to gain, and much to lose, by submitting military activities 
to the compulsory settlement of disputes. 

Assuming, then, that third-party settlement mechanisms will play a limited 
role in disputes involving naval activities, it becomes even more likely that the 
use of force will be the means by which competing interests are reconciled. That 
is not to say that the naval powers can always be expected to use their fleets in 
response to restrictive coastal state claims. To the contrary, the naval powers face 
considerable political restraints in their dealings with developing states. For a 
powerful nation concerned about its world image, it is not an easy decision to 
alter the character of a legal dispute by introducing the realities of comparative 
military strength. Opposing legal claims represent a disagreement between two 
independent political entities. Opposing force, on the other hand, requires one 
party to surrender some of its political autonomy. When a superior force is used 
to compel a settlement or capitulation, the dominating party risks the loss of its 
credibility unless it is apparent that legal considerations had to be subordinated 
to practical necessity. Of course, the nature of the underlying dispute is an 
important element in the overall assessment. It would hardly be unlawful to use 
measured force to advance a legal position that all nations supported. By contrast, 
situations that involve opposing but reasonable legal arguments, or that polarize 
large segments of the international community, do not permit any one party to 
use force solely on the strength of its legal claims. Under such circumstances force 
is justified, it at all, only by reference to factors that nations generally regard as 
capable of rendering international law irrelevant. For example, no nation would 
consider legal principles binding, or even applicable, if adherence to them meant 
sacrificing national security or independence. The same reasoning applies when 
immediate political considerations substantially alter the balance of costs and 
benefits that have given rise to the abstract legal principles governing the use of 
force by one nation against another. It is because of such political considerations 
that the judgement of the international community regarding the legitimacy of a 
nation's use of force comprehends more than generally accepted principles of 
law. 



80 Readings on International Law 

New Policies. Protests vs. Force. The problem for each naval power will be to 
develop policies that will enable it to respond to challenges at sea while 
minimizing the adverse effects on its world image. The utility of force in 
international relations is certainly not a new problem, but factors militating in 
favor of restraint have been fostered by UNCLOS III. In particular, the prestige 
and political recognition of developing States in the new ocean regime have 
become as important as the bargained-for economic rights. Any naval power cast 
in the role of a hegemonic reactionary with no regard for the political integrity 
of smaller States could lose a considerable amount of influence and respect. That 
risk must be weighted against the advantages of using or threatening force to 
preserve military or political options in any given situation. 

It is problematic to describe situations in which a naval power would be 
justified in using force in opposition to restrictive coastal State claims. The use 
of force in general is prohibited by international law, except as a legitimate 
exercise of self-defense. Exceptions to that general prohibition can be found, but 
there are no categorical exceptions that would apply to claims of jurisdiction over 
a particular area of ocean. As to the latter, any justification for the use of force 
would arise from unique political and military circumstances. Hypotheses do not 
offer much assistance because, in order to be realistic, they must be so descriptive 
and esoteric as to have virtually no argumentative value. Consequently, the only 
useful methodology is one that recognizes that the use of force may be necessary 
under certain circumstances but examines the limits on such use in both legal 
and practical terms. 

One limiting principle is that restrictive coastal State claims that do not actually 
interfere with naval operations should not be met by a demonstration of force 
solely as a means of protest. Suppose, for example, that a State were to declare 
that advance notice was required prior to passage of foreign warships through its 
economic zone. If the economic zone in question were not actually on a transit 
route for warships, there would be no need to detour an announced naval force 
through the zone to demonstrate rejection of the claim. That is not to say that 
naval powers should acquiesce in the claim. To the contrary, they should assert 
their position through diplomatic protests and public pronouncements on 
appropriate occasions. What should be avoided is the show of force merely for 
the sake of argument, and it should be avoided precisely because it would serve 
no useful purpose. A coastal State that decides to assert a restrictive claim is not 
likely to withdraw the claim simply because superior forces are ignoring it; in 
fact, violations of the claim might serve a coastal State objective of gaining 
political visibility. 

Of course, any challenge to naval mobility would generate a certain amount 
of support within the naval power for forceful intervention. The arguments 
would be, first, that ignoring such claims might invite more like them, and 
second, that nonintervention might allow the claim to "ripen" into international 



Wiegley 81 

law. The first argument is unpersuasive because there is no reason to suppose 
that a demonstration of force by a naval power would deter other coastal States 
with ambitions similar to those of the original claimant. After all, no real loss is 
involved for the coastal state. As for the second argument, it is an overstatement 
of the general proposition that general acceptance of a unilateral claim may, 
overtime, legitimize that claim. International law does not require a display of 
force to establish a record for nonacceptance. Diplomatic protests alone can 
evidence a nation's legal position, and for that reason official objections should 
be used to the maximum extent practicable in lieu of demonstrations of force. 

As a corollary to the rule just stated, a naval power faced with a challenge to 
its use of an ocean area should consider the advantages of temporarily yielding 
to the challenge. If, for example, a nuclear-powered warship were denied passage 
through a particular strait, it might be advisable to take an alternate route or to 
delay passage, depending upon cost considerations and mission requirements. 
Such an approach would allow time for diplomatic inquiries before national 
prestige is put at stake. If no accommodation could be reached, it would certainly 
not be too late to route the same vessel through the strait at the next opportunity. 
Should a confrontation then occur, the strait user would be in a position to show 
that it tried to accomplish its objectives without the threat of force. Another 
advantage of yielding to the first challenge, if practicable, would be to eliminate 
the factual misunderstandings that often lead to, and occur during, incidents at 
sea. A diplomatic exchange would frame the legal issues involved, thereby 
presenting the effects of world opinion from being diluted by irresoluble factual 
disagreements. 

Two exceptions to the rule of conflict avoidance should be added here. First, 
avoiding a challenge at sea is quite distinct from submitting to some form of 
detention or similar loss of authority. Under the latter circumstances, the law 
favors an immediate use of force as opposed to a retaliatory strike at some later 
time. The seizure of the U.S.S. Pueblo by the Democratic People's Republic of 
Korea in 1968 illustrates the consequences of delay — after the surrender, the 
prospect of retaliation by the United States quickly lost its practicality, and 
consequently, its legal justification. 

A second exception to the rule of conflict avoidance would arise if a coastal 
State challenge were related to an immediate geopolitical development. At such 
times a temporary acceptance of the restrictive coastal State claim might have 
short-term effects of greater importance than the legal issues in dispute. The 
advantages of deferring confrontation would then become irrelevant, and the 
focus of international attention would then be on the attempted exploitation of 
law, not on legal principles. 

The problem of avoiding confrontation has yet another dimension, but here 
the issue of political allegiance comes into play. A navai power should not 
undermine its credibility by showing tolerance for the restrictive claims of 



82 Readings on International Law 

friendly States simply because it enjoys a de facto exemption. All claims that are 
considered illegal should be protested through diplomatic channels regardless of 
source, even though the effects of a particular claim may only be felt by other, 
nonfriendly, naval powers. Such uniformity would emphasize the legal aspects 
of the problem, and it would enable the protesting naval power to avoid the 
charge of invoking the law only when it was advantageous to do so. Moreover, 
a consistent approach to coastal State claims would discourage what might 
otherwise become a problem of comparability — two opposing groups of coastal 
States making restrictive claims with the promise or expectation of support from 
a superpower. 

Self 'Defense. There remains the difficult question of actual initiation of force 
during an incident at sea. One of the underlying problems in this area is that the 
concept of self-defense has never been adequately translated into the language of 
seapower. To be sure, it is a well-established rule of international law that a 
warship cannot be attacked, seized or otherwise coerced by a foreign State. 
And whatever else may be said about recent changes in the law of the sea, there 
has been no suggestion that the sovereign immunity of warships is less secure 
than before. But sovereign immunity has never been absolute. A State has the 
right to arrest a foreign warship if the latter is posing an actual and imminent 
threat to the arresting State's security. Hence, either the general principle or 
the exception just stated provides at least a colorable argument for any State 
otherwise predisposed to defend its interests with force. 

If one accepts as a starting point that it is unlawful to initiate the use of force 
at sea, except in the face of imminent attack, there arise two conceptual 
problems. First, how should "force" be defined, e.g., would it be an exercise of 
force to maintain course and speed against coastal State vessels trying to block 
what the latter considered an unlawful passage? And second, how can a coastal 
State protect its interests, that force at sea is usually an interference with, not the 
exercise of, rights of transit? What good is the right to prevent or suspend 
noninnocent passage if there is no concomitant right to take action against 
violating warships? What if foreign military vessels simply ignore the warnings 
and demands of the coastal State? 

International law does not provide satisfactory answers to the questions of 
conflict at sea during peacetime except in very general terms. Consequently, the 
naval powers cannot expect the strength of their legal arguments to prevent actual 
confrontations or to provide overwhelming support for their use of force to 
defend legal rights. If force becomes the arbiter of last resort, international law 
will provide language for debate and rhetoric but little substance for a definitive 
assessment of the naval power's actions. Regarding the latter, the actual necessity 
for force will be critical as will the reputation of the naval power in terms of its 
overall policies for minimizing conflicts in the new law of the sea regime. 



Wiegley 83 

Lieutenant Wiegley was assigned to the Naval Legal Services Office, Pearl Harbor and an 
International Law of Sea Scholar at the University of Hawaii at the time this article was first 
published. 



Notes 

1. Young, New Laws for Old Navies: Military Implications of the Law of the Sea, Survival 262 (Novem- 
ber/December 1974). 

2. Booth, Military Implications of the Changing Law of the Sea, in GAMBLE, LAW OF THE SEA: NEGLECTED 
ISSUES, PROCEEDINGS OF THE TWELFTH ANNUAL CONFERENCE ON THE LAW OF THE SEA 363 
(1979). 

3. See, e.g., Ashmore, The Possible Effects on Maritime Operations of Any Future Convention of the Law of the 
Sea, Naval War College Review 3 (Fall 1976); Knight, The Law of the Sea and Naval Missions, U.S. Nav. Inst. 
Proc. 32 (June 1977); O'Connell, The Influence of Modem Operations at Sea, U.S. Nav. Inst. Proc. 157 (May 
1977). 

4. Informal Composite Negotiating Text /Revision 1, U.N. Doc. No. A/CONF. 62/WP. 10/Rev. 1, 28 
April 1979. 

5. Consider the following trend: 1969 1979 

Number of independent coastal States 109 131 

Three-mile territorial sea claims 36 19 

Twelve-mile territorial sea claims 39 76 

Between 3 and 12 miles 23 8 

Claims in excess of 12 miles 7 25 

Other (irregular or unspecified) 4 4 

6. Draper, The Indonesian Archipelagic State Doctrine and Law of the Sea, The International Lawyer 143 
(Winter 1977). 

7. O'Connell, supra n. 3 at 158. 

8. There is some disagreement on the number. One hundred sixteen (1 16) is the official U.S. Government 
figure although 121 are listed on a chart prepared by the Geographer of the State Department for a 1958 
Conference entitled "World Straits Affected by a Twelve Mile Territorial Sea." The State Department also 
produced a pamphlet entitled "Sovereignty of the Sea" (Geographic Bulletin No. 3, Rev. October 1969) which 
shows 94 straits as being between 7 and 24 miles. 

9. U.N. Conference on the Law of the Sea, 1st 1958, Official Records, U.N. Doc. No. A/CONF. 13/L52, 
1958; Convention on the Territorial Sea and the Contiguous Zone, done 29 April 1958 (1964) 15 U.S.T. 
1606, T.I.A.S., No. 5639, 516 UN.T.S. 205, Article 14(4). 

10. Walker, What is Innocent Passage, Naval War College Review 58 (January 1969). 

11. Convention on the Territorial Sea and the Contiguous Zone, Article 16(1). 

12. Id., Article 16(3). 

13. Id., Article 16(4); see also Corfu Channel Case (1949) I.C.J. 28. 

14. According to CIA Map 503784 (May 1978), there are 22 coastal States that require notification or 
permission before warships can enter their territorial seas. The United States does not honor these requirements. 

15. Articles 37-44. 

16. Dawson, The North Pacific Project at 101 , Institute for Marine Studies Publication Series IMS-UW-77-1 , 
University of Washington, Seattle, (July 1977). 

17. Johnson & Gold, The Economic Zone in the Law of the Sea: Survey, Analysis and Appraisal of Current Trends. 
Occasional Paper No. 10, Law of the Sea Institute, 28 (June 1973). 

18. O'Connell, supra n. 3 at 164; Booth, supra n. 3 at 345. 

19. International Institute of Strategic Studies, Strategic Survey at 20 (London, 1976). 

20. CIA Map 503783 5-78 (May 1978) depicts 34 such zones. For a discussion of one zone, see Choon-ho 
Park, The 50-Mile Military Boundary Zone of North Korea, Am. J. Int'l L. (October 1978). The United States 
does not recognize any of the 34 zones shown on the CIA map. 

21. E.g., BUTLER, THE LAW OF SOVIET TERRITORIAL WATERS 19-27 (1967). 

22. E.g., International Boundary Study, Series A, Limits in the Seas, No. 43, "Straight Baselines: People's 
Republic of China," Office of the Geographer, July 1972. 

23. E.g., SAUNDERS, THE SOVIET NAVY 250 (1958) for a discussion of Peter the Great Bay which was 
declared internal waters of the Soviet government in 1957. 

24. GAMBLE & FISHER, THE INTERNATIONAL COURT OF JUSTICE: AN ANALYSIS OF THE 
FAILURE 84 (1976). 



84 Readings on International Law 

25. Article 298.1(b). 

26. Janis, EHspute Settlement in the Law of the Sea Convention: The Military Activities Exception, v. 4, no. 1 
Ocean Devel. Int'l L. 51 (1977). 

27. MacGibbon, Some Observations on the Part of Proust in International Law, Br. Y.B. Int'l L. 310 (1953) 
and Johnson, Acquisitive Prescription in International Law, Br. Y.B. Int'l L. 341 (1950). 

28. BUTLER, THE SOVIET UNION AND THE LAW OF THE SEA 178 (1971). 

29. COLOMBOS, THE INTERNATIONAL LAW OF THE SEA 314 (6th ed. 1967). 

30. There are a few minor exceptions not relevant here (e.g., suppression of piracy and slave trade). See 
Wiegley, The Recovered Sunken Warship: Raising a Legal Question, U.S. Nav. Inst. Proc. 28 (January 1979). 



Chapter 7 

Regionalism and the Law of the Sea: 
The Persian Gulf Perspective* 



Charles G. MacDonald 



The Persian Gulf presents, in microcosm, the major issues in the international law of the 
sea. This paper focuses on the general approaches of two developing States, Iran and Saudi 
Arabia, to the changing law of the sea. The relationship between legal development and 
regional context is explored with a view to understanding the approaches of Iran and Saudi 
Arabia to the law of the sea, their role at the third United Nations Conference on the Law 
of the Sea, and the probable direction of future claims. 

Legal Development: Factual Background. The Persian Gulf is a semi- 
enclosed sea situated between the Arabian peninsula and Iran. It is roughly 
one-tenth the size of the Gulf of Mexico and is 97 percent bounded by land. 
The Gulfs only outlet is the Strait of Hormuz, 20.75 miles across at its narrowest. 
The Gulf is a relatively shallow basin with an average depth of only 40 meters 
and a maximum depth of about 100 meters. Numerous islands are scattered 
throughout the Gulf, but particularly along the Arabian shore. Deeper waters 
run along the Iranian coast and off the tip of the Musandam peninsula. 

Seven States make up the Gulf littoral, and one insular State, Bahrain, lies 
within the Gulf. The coastlines of the Gulf States vary from 635 nautical miles 
for Iran and 296 nautical miles for Saudi Arabia to only about 10 nautical miles 
for Iraq. 

Although eight States have their borders touching the Gulf, legal development 
in the Gulf has been based primarily upon the precedents set by the two largest 
Gulf States, Iran and Saudi Arabia. The claims and agreements of Iran and Saudi 
Arabia have effectively established certain international legal norms that are not 
only complied with by other littoral States, but are also reflected in their 
respective claims. 

National Claims 

Territorial Sea Claims. In 1934 Iran defined its initial claim to Persian "territorial 
waters." In its Act of 19 July 1934 relating to the Breadth of the Territorial Waters 

* Reprinted from the Naval War College Review September-October 1980. 



86 Readings on International Law 

and Zone of Supervision, Iran claimed territorial waters extending to 6 miles and 
claimed that its islands also had 6-mile territorial waters. Iran implicitly used 
straight baselines in that islands forming an archipelago were deemed to form a 
single island. 

Saudi Arabia, in its Decree No. 6/4/5/3711 defining the Territorial Waters 
of the Kingdom, 28 May 1949, also claimed 6-mile territorial waters, specifically 
its coastal sea, as extending 6 miles from its coast. Saudi Arabia also claimed the 
use of straight baselines for areas having offshore islands and recognized the right 
of innocent passage. 

Saudi Arabia redefined its territorial waters in its Decree No. 33 of 16 February 
1958. It replaced the broader term "territorial waters" with the term "territorial 
sea," and expanded its claim to 12 miles. It also dropped its specific reference to 
"innocent passage." 

Iran followed the Saudi example and claimed a 12-mile territorial sea in its 
Act of 12 April 1959, amending the 1934 Act relating to the Breadth of the 
Territorial Sea and Contiguous Zone of Iran. 

Resource Claims. Saudi Arabia, in its Royal Pronouncement with Respect to 
the Subsoil and Sea Bed of Areas in the Persian Gulf contiguous to the Coasts 
of the Kingdom of Saudi Arabia, 28 May 1949, established its first claim to 
submarine resources. Saudi Arabia claimed that "the subsoil and sea bed of those 
areas in the Persian Gulf seaward from the coastal sea," but contiguous to its 
coasts "appertain to the Kingdom of Saudi Arabia" and are "subject to its 
jurisdiction and control." Saudi Arabia provided that the boundaries of the subsoil 
and seabed contiguous to its coasts would be "determined in accordance with 
equitable principles" by the Saudi Government "in agreement with other States 
having jurisdiction and control over the subsoil and seabed of adjoining areas." 

Iran had a bill defining its claim to the Persian Gulf subsea resources submitted 

10 

to its Majlis on 19 May 1949, but did not enact its "continental shelf' claim 
into law until 1955. In its Law of 19 June that year Iran claimed that "the area 
and the natural resources of the seabed and the subsoil thereof to the limits of 
the continental shelf ... in the Persian Gulf and Gulf of Oman, belong to the 
Iranian Government." Iran also provided that "where the continental 
shelf. . . extends to the coast of another or coincides with that of a neighboring 
country, and if disputes arise concerning the limits of Iran's continental shelf, 
such disputes shall be settled in conformity with the rules of equity." (In its 
original 1949 bill the limits were to be fixed equitably with respect to the natural 
resources of the continental shelf.) 

In other claims relating to offshore resources, Iran, in its Proclamation of 30 
October 1973, claimed that its exclusive fishing zone would extend to the outer 
limits of the superjacent waters of its continental shelf in the Persian Gulf and 50 
nautical miles in the Gulf of Oman. Saudi Arabia made a similar claim to fishing 
resources in the Gulf in its Proclamation of 30 April 1974. 



MacDonald 87 

Bilateral Agreements. Numerous bilateral agreements delimiting offshore juris- 
diction in the Gulf have been reached. These are commonly called continental 
shelf boundaries even though no shelf as such exists within the Gulf. They are 
all based upon equitable principles, but are flexible in their application of such 
principles. The first agreement, the Saudi Arabia-Bahrain Agreement of 22 
February 1958, established a central boundary line between the two States based 
on equidistance. Also included in the treaty was the establishment of a 
hexagonal area under Saudi jurisdiction, but with half of the net income derived 
from the area to go to Bahrain. The Saudi Arabia-Kuwait Agreement of 7 July 
1965 provided for joint ownership of mineral rights in the offshore neutral zone 
and joint exploitation unless otherwise agreed. 

Perhaps the most significant agreement reached in the Gulf was between Saudi 
Arabia and Iran on 24 October 1968. It delimited the boundary line separating 
the submarine areas between the two States. The agreement, reached only after 
difficult negotiations, provided for a boundary having three distinct parts. Again 
the flexible application of equitable principles was necessary. The lower portion 
of the boundary essentially represented a median line. The central portion 
included two disputed islands. One island went to each State, with territorial seas 
recognized for both. The upper section of the boundary proved to be the most 
difficult. One compromise resulted in Kharg Island being given "half-effect." 
Also, the boundary line was drawn irregularly to divide equally the resources of 
an oilfield discovered after negotiations had begun. 

Other boundary agreements were also reached between Iran and Qatar in 
1969; Iran and Bahrain in 1971; Iran and Sharjah in 1971; Iran and Oman in 
1974; and Iran and Dubai in 1974. Nevertheless, a number of boundaries remain 
in dispute, especially in the extreme northern and southern parts of the Gulf. 

Multilateral Agreements. The only legal development in the Gulf based on 
multilateral action has involved the protection of the environment. First, the 
International Conventional for the Prevention of Pollution from Ships signed in 
London on 2 November 1 973 provided for the designation of "special areas" 
that required more stringent protective measures for the preservation of the 
marine environment. The Persian Gulf was one such area. 

Subsequently, in April 1978, the Gulf States convened the Kuwait Regional 
Conference on the Protection and Development of the Marine Environment. 
At the conference the Kuwait Regional Convention for Cooperation on the 
Protection of the Marine Environment from Pollution was signed. Also a 
Protocol, providing for joint cooperation in the case of a major oilspill or other 
marine emergencies, was signed. 

Legal Development: Regional Context. When placed in a broader regional context, 
the substance and timing of the various national claims, bilateral agreements, and 



88 Readings on International Law 

multilateral actions can be better understood. Examining these claims and 
agreements in terms of the underlying national interests that exist within a given 
region can offer insights into the nature of legal development and its relationship 
to the regional context. 

National Claims 

Territorial Sea Claims. Iran's territorial sea claims were directly tied to the Gulf 
context. The 1934 claim to 6-mile territorial waters and the implicit use of 
straight baselines (made after Iran's participation in the 1930 Hague Conference) 
was tied not only to the geographical characteristics of the Gulf, but also to Iran's 
security interests and to its efforts to avoid becoming entangled in the ongoing 
European rivalries in the Gulf. Its subsequent claim to a 12-mile territorial sea in 
1959 was directly tied to political developments in the Gulf and to Iran's security 
interests. Two days after Iraq's President Kassem called for Iraq "to restore" a 
5-kilometer stretch of the Shatt-al-Arab River that had previously been granted 
to Iran, Iran extended its territorial sea from 6 to 12 miles for security reasons. 
The Iranian claim presaged the Shatt-al-Arab crisis. 

Saudi Arabia's initial territorial sea claims were closely tied to regional 
developments, specifically to Aramco's interest in exploiting offshore oil. Saudi 
Arabia, at the recommendation of Aramco, hired Judge Manley O. Hudson and 
Richard Young of Harvard Law School to draw up its offshore claims to insure 
that its offshore oil exploitation could succeed in a "sound legal environment." 
Upon the recommendation of Judge Hudson, Saudi Arabia accepted a "package 
deal." It provided for Saudi claims to: (1) territorial waters; (2) resources of the 
seabed and subsoil of areas contiguous to the coasts; (3) claims to certain offshore 
islands. Mr. Young, who participated in the writing of the claims, indicated that 
the 6-mile claim was based upon "regional precedent," dating back to the 1914 
claim of the Sublime Porte of the Ottoman Empire that claimed 6-mile territorial 
waters in the Gulf. Moreover, the use of "straight baselines" was tied to the 
geographical configuration of the Gulf and based on the Norwegian legislation 
that was being considered by the International Court of Justice in the Anglo- 
Norwegian Fisheries Case. 

The expansion of Saudi Arabia's territorial sea to 12 miles in 1958 was directly 
tied to Saudi Arabia's security interests. Of primary importance in this regard was 
the presence of Israeli warships in the Gulf of Aqaba. 

Resource Claims. The Iranian and Saudi offshore resource claims were closely 
related to developments within the Gulf. Iran's "continental shelf' claim, as put 
forth in 1949, was not enacted until 1955 because of the Anglo-Iranian oil 
relationships. Also of importance were the results of the Qatar Case of 1950 and 
the Abu Dhabi Case of 1951 which indicated that prior concessions did not 



MacDonald 89 

include the seabed and subsoil of those areas contiguous to the territorial waters 
of the states involved. 

According to Richard Young, the Saudi claim to the resources of the seabed 
and subsoil was directly based on the Truman Proclamation. The claim was 
altered, however, to conform with the geographical characteristics of the Gulf. 
Because the Gulf was essentially a basin and had no shelf as such, the Saudi claim 
was based upon the "principle of contiguity." (Iran's claim was to the continental 
shelf, but Iran does have a shelf extending into the Gulf of Oman.) 

The fishing claims of Iran and Saudi Arabia supported two specific interests 
in the Gulf. First, the claims were in response to the presence of foreign fishing 
vessels, especially those of Japan. Thus an economic interest in the fishery 
resources was supported. Second, apart from conserving fishery resources, 
security interests were served. Foreign vessels, supposedly fishing, could no 
longer move freely in the areas contiguous to the territorial sea but became subject 
to regulation. This could limit subversive activities and foreign intelligence 
operations. 

Bilateral Agreements. The Iranian and Saudi agreements delimiting offshore 
resource boundaries are closely tied to the Gulf context, both in terms of its 
geographical features and political developments. First the agreements were 
influenced fundamentally by the physical features of the Gulf, especially by the 
presence of islands and "known" fields of petroleum. Boundary lines were often 
adjusted to allocate resources in an equitable manner and to take into account 
certain islands, such as Kharg Island. Disputed islands often delayed and some- 
times have prevented the delimitation of certain offshore areas. The dispute over 
Abu Musa and the two Tunbs has complicated boundary delimitation in the 
south. Similarly, the competing claims to Warbah and Bubiyan islands complicate 
boundary delimitations in the north. 

Political developments have played a significant part in motivating States to 
seek agreements. For example, Iran and Saudi Arabia negotiated for years on 
their offshore boundary, but were able to reach a final agreement only after the 
British announced their withdrawal from the Gulf. Interests in regional stability 
led Iran and Saudi Arabia to move to resolve other lingering territorial disputes 
with their neighbors. 

Multilateral Agreements. The Gulf efforts to protect the environment are also 
tied to both geographical and political considerations within the region. The 
danger of pollution in the Gulf is not only associated with the heavy tanker traffic, 
but also with the relatively slow interchange of water between the Persian Gulf 
and Indian Ocean. Moreover, the threat to the environment has direct political 
overtones within the region in light of the professed threats of terrorist attacks. 
In the summer of 1979 the United States warned its ships traveling through the 



90 Readings on International Law 

Strait of Hormuz to be on the alert for possible terrorists activities. Lloyds of 
London identified the Gulf as a "war zone" requiring additional insurance. 

The success of pollution control efforts and the Action Plan of the Kuwait 
Regional Conference are directly tied to the cloud of uncertainty hanging over 
the Gulf following the Iranian Revolution. 

General Approaches to the Law of the Sea. While the relationship between legal 

developments and regional context is important, insights into the Iranian and 

Saudi approaches to the law of the sea can be realized by exploring the nature of 

their participation in the United Nations conferences on the law of the sea. Iran 

and Saudi Arabia have participated at all three U.N. law of the sea conferences. 

Their policy statements are revealing. 

At the 1958 conference the Saudi delegate, Mr. Shukairi, suggested that certain 

rules of international law were outmoded and generally reflected the interests of 

only a few states. He indicated that international law should reflect 'the collective 

will of all States participating as sovereign States and possessing sovereign 

equality," with the developing States also taking an active part in the progressive 

1 a 
development and codification of the law of the sea. The Saudi delegate asserted 

that "it was only after the remnants of the antiquated rules of international law 

had been swept away that progressive development of that law could take 

place." Mr. Shukairi maintained that the "vital interests" of all States must be 

"reflected in whatever code" was adopted. 

Although Saudi Arabia identified itself as a developing State and charged that 
some laws were "antiquated" and based on the "customs and usage" of only a 
few States, it did not challenge the basis of modern international law. Rather, 
Saudi Arabia maintained that the very foundations of international law must be 
considered, and that the origin of such concepts as "territorial sea" must be 
reviewed. Saudi Arabia went to great lengths to indicate that its actions were 
"in conformity with modern trends and practice as well as with the (International 
Law) Commission's conclusions." 

At the 1958 and 1960 conferences Saudi Arabia often challenged the positions 
assumed by the United States and Britain, two maritime powers. Saudi Arabia, 
however, did not challenge their "Western" law, but rather the American and 
British interpretations of it. Saudi Arabia often cited American and British 

precedents and quoted Western jurists, such as Philip Jessup, to support its 

■ • 22 
position. 

Iran's general approach toward the law of the sea as expressed at the 1958 and 

1 960 conferences was not unlike that of Saudi Arabia. Iran recognized a basic 

cleavage between the interests of developing States and those of maritime powers. 

Iran called attention to certain inequalities that resulted in "obsolete customs and 

practices" that were "enshrined in conventions to which most of the states of 

Asia and Africa were not parties.'" Iran opposed certain prescriptive rights 



MacDonald 91 

included in an American proposal on fishing and charged that the proposal 
"sought to perpetuate an unjust practice which many under-developed or former 
non-self-governing countries had been unable to combat." In its opposition to 
the American proposal for a 3-mile limit, Iran not only stated that a 3-mile limit 
would exclusively serve the interests of the maritime powers, but charged that 
"in fact, they were laying claim to hegemony of the high seas.'* Furthermore, 
Iran claimed that many States were "under-developed" because of "the policy 

of colonialism followed by the States which benefited from the freedom of the 

i*26 

seas. 

Iran, in pointing out inequalities that have developed through time, never- 
theless indicated that "a new era had begun" and that "the under-developed 
States of Asia and Africa, including all those which had recently become 
independent, were ready to cooperate in all honesty and without bitterness with 
the great maritime States if they showed understanding." Iran called for the 
progressive development of international law to be achieved through "com- 
promise in a spirit of progressive realism." Iran recognized that inequalities 
existed and that maritime powers were pursuing their own interests, but called 
for the interests of the developing States to be recognized as well. 

Iran, while noting that "unjust practices and customs" did exist, did not 
condemn international law. Instead, Iran called for its progressive development. 
In opposing the positions assumed by the maritime powers, Iran employed 
traditional international legal principles and cited American precedents and the 
work of the International Law Commission. 

Iran and Saudi Arabia did participate in the 1958 United Nations Conference 
on the Law of the Sea, but the law of the sea in the Persian Gulf is not directly 
tied to the 1958 law of the sea conventions. Iran did sign the four conventions, 
with certain reservations, but did not ratify any of them because of its Gulf 
neighbors' opposition to the conventions. Saudi Arabia and the other Arab Gulf 
States refused to sign the 1958 conventions because of the single article providing 
for Israeli access through the Gulf of Aqaba and Strait of Tiran. In other words, 
despite Iranian and Saudi participation and negotiations, their law of the sea claims 
were primarily determined by the regional context. 

The Third United Nations Conference on the Law of the Sea. At the Third United 
Nations Conference on the Law of the Seas (UNCLOS III) Iran and Saudi Arabia 
have each actively participated as they did in the first two United Nations 
conferences. Each has assumed what might be termed a Third World stance on 
such representative issues as the breadth of the territorial sea, marine scientific 
research, and the implementation of the concept of "the common heritage of 
mankind." The Iranian delegate, for example, called for a strong International 
Sea-Bed Authority with its powers being "as wide as possible." 



92 Readings on International Law 

While many of the issues are of interest but do not affect the Gulf States directly 
because of the relatively small size of the Gulf, two issues have been especially 
important to Iran and Saudi Arabia — the status of the straits used for international 
navigation and the preservation of the marine environment. At the heart of the 
two issues are two fundamental tensions confronting conference participants. 
First is the tension between the interests of a coastal State in regulating its adjacent 
sea and those of the international community in freedom of the high seas. The 
second is the tension between the particular needs of "special areas" and the 
attempt to establish general rules that would be universally applicable. 

The question of transit through straits has been especially important to both 
parties. Iran has maintained that "the sovereignty of the coastal State was subject 
only to the exercise of the right of innocent passage of ships," and that "passage 
through straits used for international navigation must not affect the legal status 
of the territorial sea when the straits were situated within the territorial sea of 

31 

one or more States."' Iran, bordering on the strategic Strait of Hormuz, is 
especially interested in "regulating" passage through the strait. Free transit or 
innocent passage would exist as long as pertinent regulations were complied with. 

Saudi Arabia "supported free passage in international straits connecting dif- 
ferent parts of the high seas" and contended that a distinction should be made 
between straits. A Kuwaiti delegate, speaking for six Arab States including Saudi 
Arabia, stated that "the term 'straits used for international navigation' should be 
strictly confined to straits which connected two parts of the high seas." He 
further indicated that "the Governments on whose behalf he was speaking had 
not acceded to the Convention on the Territorial Sea and Contiguous Zone of 
1958" because it "treated all straits alike."* Thus, Saudi Arabia and others 
continue to show a security concern for any Israeli transit through the Gulf of 
Aqaba and Strait of Tiran. 

Related to Iran's policy on straits has been Iran's concern for the special 
characteristics of the Persian Gulf as a semienclosed sea. In 1974 Iran called for 
a special status for semienclosed seas to be recognized. The Iranian representative, 
Mr. Kazemi, pointed out special problems of semienclosed seas, especially 
regarding the preservation of the marine environment, resource management, 
and international navigation, and asserted that their particular status constituted 
"an exception to the general rule." Mr. Kazemi indicated that "his delegation 
attached great importance to the protection of the marine environment and to 
the struggle against the pollution of the seas." Mr. Parsi, in the Second 
Committee, stated that "enclosed or semi-enclosed seas represented more acute 
problems which could not be solved by global norms applicable to all oceans," 
and that "they formed an intrinsic geophysical and ecological entity and were 
vulnerable to pollution and overfishing." 

Because of the Iranian interest in the preservation of the marine environment 
and special consideration for semienclosed seas, Iran came to promote a "zonal 



MacDonald 93 

approach to the marine environment." Subsequently, Iran stressed that "primary 

jurisdiction should rest with the coastal State/* which should have "enforcement 
,♦38 

powers. 

Saudi Arabia also addressed the marine pollution problem. In the seventh 
session in 1978, Saudi Arabia, along with other Arab States, expressed a serious 

concern for establishing "responsibility and liability" for any damage to the 

39 
marine environment. 

Future Legal Developments and the Regional Context: A Conclusion. When 
future possibilities in the Persian Gulf are considered with a view to previous 
experience, it is apparent that the regional concerns of the Gulf States would 
continue to predominate over the international law being developed at UN- 
CLOS III. While Iran and Saudi Arabia have participated in the United Nations 
law of the sea conferences and have relied on "Western" sources and principles 
to support their claims, they have based their legal positions on their own national 
interests that have run counter to those of the maritime powers. Moreover, the 
political and geographic circumstances in the Gulf, the regional context, have 
proved to be the final determining factors in the substance and timing of their 
legal claims (and in their refusal to accept the 1958 law of the sea conventions). 
With future developments tied to their interests within the Gulf, their real 
legal focus is probably going to be on the achievements of the Kuwait Regional 
Conference and the preliminary efforts to form a permanent regional organiza- 
tion for the control of pollution in the Gulf, rather than on how the final 
UNCLOS III treaty will deal with pollution control or the preservation of the 
marine environment. Furthermore, the security interests of the Gulf States in 
light of their mutually expressed desire to avoid any superpower presence within 
the Gulf will be more fundamental to the establishment of a special regional 
regime than any agreement at UNCLOS III. Whether the Persian Gulf will lose 
its previous status as high seas and actually become a "closed sea," will be 
determined by the interests within the region. The Persian Gulf perspective on 
the law of the sea is essentially a regional perspective determined by the 
geographic peculiarities and factors and forces within the Gulf. 



Charles McDonald received his Ph.D. from the University of Virginia. He was an assistant 
professor in the Department of International Relations of Florida International University at the 
time he wrote this article. 



Notes 

1. U.S. Dept. of State, Bureau of Intelligence and Research, Sovereignty of the Sea, Geographic Bulletin 
No. 3, rev. ed. (Washington: U.S. Govt. Print. Off., 1969), at 18-27. 



94 Readings on International Law 

2. Depths up to 146 meters have been reported off the Musandam Peninsula. For a detailed geographic 
and hydrographic description of the Gulf see U.S. Defense Mapping Agency, Hydrographic Center, Sailing 
Directions for the Persian Gulf, Pub 62, 5th rev. ed. (Washington: 1975). 

3. U.S. Dept. of State, at 19-21. 

4. See MacDonald, The Roles of Iran and Saudi Arabia in the Development of the Law of the Sea, Journal of 
South Asian and Middle Eastern Studies 3-10 (Spring 1978). 

5. For text see United Nations, Law and Regulations on the Regime of the Territorial Sea, United Nations 
Legislative Series, (ST/LEG/SER.B/6) (New York: 1957), at 24-25. 

6. For text see 43, Supplement to the Am. J. Int'l L. 154 (1949). 

7. For text see United Nations, Supplement to Laws and Regulations on the Regime of the High Seas and 
concerning the Nationality of Ships, United Nations Legislative Series, (ST/LEG/SER.B/Suppl.) (New York: 
1957), at 29-30. 

8. For text see United Nations, Second United Nations Conference on the Law of the Sea, A/CONF.19/5 
(Geneva: 1960), at 15. 

9. For text see 43, Supplement to the Am. J. Int'l 156 (1949). 

10. For text see Revue Egyptienne de Droit International, v. 5, 1949, at 347. 

11. For text see CHURCHILL, VOL. 1 NEW DIRECTIONS IN THE LAW OF THE SEA 307-308 (1973). 

12. For text see United Nations, National Legislation and Treaties Relating to the Law of the Sea, United 
Nations Legislative Series (ST/LEG/SER.B/18) (New York: 1957), pp. 334-335. 

13. For text see U.S. Dept. of State, Continental Shelf Boundary: Bahrain-Saudi Arabia, International Boundary 
Study Series A — Limits in the Seas, No. 12, 10 March 1970. 

14. For text see 60 Am. J. Int'l L. 744 (1966). 

15. For text see 8 I.L.M. 493 (1969). 

16. For text see 12 I.L.M. 1319 (1973). 

17. For conference documents see I.L.M. 501 (1978). 

18. See United Nations, United Nations Conference on the Law of the Sea, A/CONF.13/39 (Geneva: 1958), 
v. Ill, at 3. 

19. Id. 

20. Id. at 36. 

21. Id. 

22. Id. at 130. 

23. Id., v. IV, at 23-24. 

24. ld.,\. II, at 41. 

25. Id., c. IV, at 23. 

26. Id. 

27. Id. 

28. Id. at 24. 

29. See U.N. Second Conference on the Law of the Sea, p. 103. 

30. United Nations, Third Conference on the Law of the Sea, A/CONF.62/SR-51 (New York: 1975), v.l, 
at 72. 

31. Id., v. II, at 123. 

32. Id., v. I, at 144. 

33. Id., v. II, at 139. 

34. Id. 

35. Id., at 273. 

36. Id., v. I,at73. 

37. W.,v. II, at 115-116. 

38. Id., v. IV, at 90. 

39. Id., v. X, at 185-186, 188. 



Chapter 8 
Law and Strategy in Northern Waters' 



Ken Booth 



Whatever the prospects for UNCLOS III, history shows that norms will change and 
will bring about changes in the law of the sea. Of immediate concern in this paper is the 
issue of "creeping jurisdiction" and its effects on naval diplomacy and arms control. A proposal 
for control of strategic ASW is presented. 

Almost all law of the sea (LOS) issues have had a good airing in the recent 
past, and in most respects the market place for papers is well past saturation 
point. There is little scope for new ideas. Nevertheless, a further look at the 
relatively neglected strategic aspects of the subject will provide an opportunity 
to check the validity of old ideas, and see whether changing circumstances are 
likely to affect the desirability or undesirability of various possibilities. 

This discussion of the relationship between law and strategy in northern waters 
falls into two main parts. The first examines "the immediate future," that is, the 
military implications (mainly the lack of them) of the law of the sea as it seems 
likely to emerge from UNCLOS III. This subject has been widely if not deeply 
discussed. There has been general agreement about the prospects, and the main 
conclusions do not require challenging. The second part is more speculative. It 
examines the "longer term" implications of the changing regime at sea, that is, 
the possibilities that might emerge after the dust has settled from UNCLOS III, 
or in the event of it not settling. The setting for these possibilities is the drift 
towards creeping jurisdiction. 

The Strategic Significance of Northern Waters. Northern waters have 
been the area of major sustained naval confrontation since World War II. A useful 
distinction can be made between the North Atlantic as an arena and as a source of 
international conflict. Throughout the postwar period the strategic significance 
of these waters has been as an arena of conflict. This will be the case in future, 
but not so exclusively. 

In broad terms the strategic significance of northern waters can be seen from 
four different points of view: 

NATO Europe. The success of NATO rests on the ability of its members to 
use the sea in peace and war: it is an alliance cemented by seawater. In peacetime, 

* Reprinted from the Naval War College Review July- August 1981. 



96 Readings on International Law 

NATO Europe is heavily dependent upon maritime transport for trade, energy, 
and raw materials. In addition, the North and Norwegian Seas and Arctic waters 
have become increasingly important as actual and potential sources of economic 
wealth, especially in the energy field. In wartime the Atlantic would provide 
access between NATO Europe and the linchpin of the alliance, the United States. 
The bulk of the reinforcements upon which the successful prosecution of a long 
war would depend would have to move by sea. The Norwegian Sea and the 
Greenland-Iceland-United Kingdom (GIUK) gap would be areas in which major 
battles would be fought for both sea denial and sea control purposes. NATO 
forces would seek to minimize the Soviet submarine threat and create the 
conditions for the provision of reinforcements and the projection of force. 
Important battles would take place for the control of northern Norway, the Baltic 
exits, and Iceland, for these would be immediate Soviet targets. Because of the 
critical importance of the reinforcement of NATO Europe in the event of war, 
it is politically important that the European allies have confidence that the United 
States has both the will and capability to carry out the task. Conversely, the 
undermining of this confidence in peacetime is a tactic by which the Soviet 
Union might hope to weaken the bonds of the alliance. 

NATO North America. In peacetime, the North Atlantic provides access for a 
wide variety of imports and exports, and is an increasingly significant actual and 
potential source of energy. The North Atlantic provides a major deployment 
area for U.S. SSBNs and aircraft carriers targeted against the Soviet Union; it is 
also a vital area for the deployment of U.S. antisubmarine and antisurface 
surveillance efforts. In wartime, the main sea line of communication (SLOC) for 
the bulk of (mainly U.S.) reinforcements to all parts of the alliance would pass 
through northern waters; these SLOCs would therefore be the scene of critical 
battles. 

The Soviet Union. In both peace and war the northeast Atlantic provides ingress 
and egress for the main Soviet Fleet and its associated air forces based on the Kola 
Peninsula. The Soviet Northern Fleet contains about two-thirds of the Soviet 
Navy's SSBNs, cruise missile submarines and missile-armed maritime aircraft. 
The western Atlantic and the Barents Sea are deployment areas for Soviet SSBNs. 
Extensive U.S. nuclear power is targeted at the U.S.S.R. from northern waters, 
and so the northeast Adantic provides access for Soviet attempts to counter this 
threat. Since the mid-1960s the Soviet Navy has moved forward to meet its 
various threats, and so has pushed out its area defense responsibilities in northern 
waters. But in one respect, the submarine threat to western SLOCs, extensive 
areas of the North Atlantic have long been of interest to the Soviet Navy. The 
Baltic is of significance because it provides access to the Leningrad area and the 
coasts of important Warsaw Pact allies. Apart from fishing, the economic value 
of northern waters to the Soviet Union is potential rather than actual, but it is 
interested in resource exploitation in NATO-controlled areas both because of 



Booth 97 

the restrictions that it might entail to their own naval mobility and because of its 
potentiality for causing disputes within the alliance. 

The neutrals. Northern waters are militarily significant for Sweden and Finland 
not mainly because they are littoral States, but because these waters play decisive 
roles in both Soviet and U.S. global strategies. Any Soviet-American confronta- 
tion in these waters would affect the security of the neutrals. At present, the 
latter's chief fear is not of a "direct" Soviet attack but rather fear of the spillover 
of a superpower conflict. 

Because NATO is an alliance held together by the sea, it follows that the 
Soviet Union can use this dependence to weaken the alliance in peace, and 
contribute to its defeat in war. For both adversaries, therefore, continued ability 
to use the sea is crucial, for preventive and positive reasons. If any war in Europe 
proves to be "long," the battle of the Atlantic will, for the third time, be decisive 
for the outcome. In the recent past, northern waters have witnessed two main 
trends: an increasingly dangerous Soviet naval challenge to NATO naval power, 
and the growth of economic and political problems that have produced a 
recognition that the significance of these waters has been increasing from all 
standpoints. We can expect to see more trouble in the future than we have been 
accustomed to face in the past in these waters. In large part this is because we 
have become accustomed to expect so little. Now the North Atlantic is an area 
in which many of the changing economic and military uses of the sea intermix 
in a peculiarly complex, if not particularly dangerous, fashion. 

From this brief discussion of the strategic significance of northern waters it is 
evident that they will become a new, albeit limited, source of international 
conflict, while still remaining the arena for the major concentration of contem- 
porary naval power. 

Short-Term Implications: Life After UNCLOS III. As a result of the 
session at Geneva in the summer of 1980, UNCLOS III produced a Draft 
Convention (Informal Text), and a feeling of confidence that a treaty will finally 
be signed in 1981. The treaty will enter into force when a specified number of 
States have ratified it, a process that may be neither smooth nor short. There 
remains some uncertainty about the precise character of the post-UNCLOS III 
maritime regime, but about the military aspects there seems to be relatively little 
doubt. The status quo will be maintained. The present text is satisfactory for the 
naval powers: for the time being it assuages their fears about a more restrictive 
regime. 

From a military point of view, reading the latest UNCLOS text is like 
watching Hamlet without the ghost. Strategic considerations played an important 
part in the negotiating of the text, but they are most noteworthy in the 
end-product by their absence. The latest text gives more restrictive powers to 
coastal States, but leaves the military aspects of the exercise largely unaffected. 



98 Readings on International Law 

These can be stated briefly. The 12-mile territorial sea, which extends the 
innocent passage provision, has no major military significance. Its main meaning 
was in relation to the possible nationalizing of hitherto international straits. 
However, the text provides for essentially unimpeded passage for ships, sub- 
marines, and aircraft through or over straits. The proposed transit rights are 
equivalent to high-seas passage. The Baltic Straits are the only important straits 
for the present discussion, and their regime is unaffected as a result of Article 
35(c) concerning those straits regulated by "long-standing international conven- 
tions in force." More significant than changing straits-regimes in northern waters 
is the problem of the seabed. In the past, some have argued in favor of the 
complete demilitarization of the seabed but it has not proved possible to go 
beyond the Seabed Treaty; this entered into force in 1970 and prohibits the 
emplacement of nuclear weapons and other weapons of mass destruction. 
UNCLOS III has agreed that the deep seabed be reserved for "peaceful 
purposes," a form of wording that the naval powers see as perfectly consistent 
with their projected military activities. There has been some disagreement 
whether "military" listening devices are peaceful, and there is scope for disagree- 
ment about what is "scientific" research, for much scientific research in the 
oceans has military implications. For the present, seabed military activities remain 
intact, if not unchallenged. 

A major innovation of UNCLOS III is the 200-mile exclusive economic zone 
(EEZ), in which coastal nations have specified rights over fish, oil and gas, 
environmental protection, and the conduct of marine scientific research. The 
UNCLOS text has circumvented disputes about military activities in EEZs by 
adopting a tactic of silence. Behind this silence has been hidden a number of 
rights for navies. What is not prohibited is permitted. UNCLOS III has not 
spoken any last rites over naval strategy. 

From this brief discussion it would appear that there are no major strategic 
implications in northern waters arising out of the military provisions (or lack of 
them) of the Draft Convention of UNCLOS III. There have been some minor 
implications, but these could have been expected regardless of UNCLOS III. 
Pollution, economic exploitation, increased traffic control and other considera- 
tions have combined to draw new attention to the policing or constabulary task 
of navies in coastal waters, and threaten some restriction on naval movement. 
Changing international regulations are not self-enforcing: warships and aircraft 
act as badges of sovereignty and agents of enforcement. In addition to new 
constabulary tasks, military power is necessary for more serious possibilities. In 
areas of disputed jurisdiction, nations that do not want to lose them will have to 
show a willingness to defend their patches of water. Their claims will normally 
require naval support as well as legal arguments. In these circumstances small 
powers trying to assert their rights in the face of stronger neighbors will be given 
additional confidence if their claims are supported by a unified alliance. Displays 



Booth 99 

of aggressive determination will have their part. Although the circumstances were 
peculiar, it should be remembered that Iceland gained considerable diplomatic 
leverage by the vigorous use of its handful of gunboats during its mid-1970s 
fishing dispute with Britain. Naval forces will have an important role in the 
process of regime change. The process will be neither speedy nor free of 
problems, and naval forces will help determine the resolution of jurisdictional 
questions, and the development of particular norms. 

The changes in naval strategy and technology that have been and are occurring 
in northern waters are for the most part the result of factors other than changes 
in the law of the sea. They are much more the result of the interplay between 
domestic politics in the countries concerned, the momentum of technical 
innovation, and the dialectic of the strategic relationship with the adversary. But 
the law of the sea does have some direct implications for the area as a source of 
conflict, both within NATO and between various NATO allies and the Soviet 
Union. 

A major regime change can always be expected to cause disputes and conflicts, 
especially where security and resource issues are involved. Disputes in northern 
waters can be expected over boundaries and conflicting ocean use, but among 
the NATO allies it is unlikely that there will be any dispute serious enough to 
involve military manifestations, even at a low level. Such disputes as might arise 
should be amenable to settlement by other means: they have several charac- 
teristics that lead one to expect that they will be settled in an orderly fashion. 
However, if any dispute should become prolonged, it could help exacerbate 
outstanding problems and so contribute to a loosening of the bonds of the 
alliance. Disagreements over fishing in the North Sea and between the United 
States and Canada are the most relevant disputes at present, but they have no 
strategic significance. The incentives for agreement among the allies are strong, 
but experience shows that this is never a guarantee that trouble will be avoided. 
Among other things, domestic pressures can upset rational foreign policy 
calculations. 

Not all disputes in the region are free of danger. Between one NATO ally 
and the Soviet Union there are two worrying issues, Svalbard and the delimitation 
of the Barents Sea. The two issues prompt some different responses among the 
allies, but both derive their strategic significance from the importance of the 
Barents Sea for Soviet security. The origins and character of the issues have been 
thoroughly discussed elsewhere, and do not need repeating. It is merely necessary 
to note that they have three main military features. In the first place, Soviet naval 
interests (especially the desire to minimize external involvement across the 
traffic-ways of the Northern Fleet) will significantly affect the Soviet stance on 
all jurisdictional questions in the area. If the past is any guide, security issues are 
those on which the Soviet Union is most obdurate and highly sensitive. Secondly, 
it is thought unlikely that Svalbard would be the target of bolt-from-the-blue 



100 Readings on International Law 

Soviet aggression. Instead, as an outpost of an adversary alliance, it can be 
expected that Svalbard will be squeezed occasionally by the Soviet Union, in 
order to test Norway's resolve. In this sense it will play the role of a northern 
Berlin. The Soviet Union can hope to engage Norway on a non-NATO basis, 
and hope to weaken its ties with the alliance. Thirdly, this means that the allies 
should do whatever is possible (which presumably means what Norway thinks 
is desirable) to give Norway the confidence to stand up to the Soviet Union, 
without actually provoking it. It is important that Soviet policymakers believe 
that the NATO allies support Norway's position. 

In the short term, naval developments in northern waters will be shaped more 
importantly and more directly by political, economic, and technical develop- 
ments unrelated to changes in the law of the sea. These developments will 
primarily affect northern waters as an arena of conflict. The changes that will 
emerge, clearly or messily, from UNCLOS III will primarily affect northern 
waters as a source of conflict, to the extent that they exacerbate political relations 
between the NATO allies and provide an occasion for disputes between the 
Soviet Union and Norway. 

Long-Term Implications: Living with Creeping Jurisdiction. The long- 
term military implications of the changing law of the sea arise from the 
possibility — perhaps the likelihood — that some aspects of UNCLOS III will not 
have a long lifetime. The law of the sea has fluctuated in the past, and will 
undoubtedly continue to do so in the future. One cannot predict how long it 
may take before changing norms will threaten the rules to be established in 
UNCLOS III, but it is well to remember that UNCLOS I (1958) started to be 
superseded within 10 years, and its provisions will formally be changed after 23 
years. Who expected the rapid reversal of policy by the traditional maritime 
powers on a 200-mile EEZ? Who would have thought an International Seabed 
Authority probable 10 years ago, or the relatively easy codification of the 12-mile 
territorial sea? Conservative expectations about the future might be just as fragile 
as were these ideas in the recent past. In international politics, norms invariably 
outrun the law. 

Norms will change, and will bring about changes in the law of the sea. For 
the present discussion the most important feature of change is the phenomenon 
of "creeping jurisdiction" (over and under the ocean, in straits, coastal zones, the 
seabed, and what was formerly the high seas). Creeping jurisdiction is of evident 
concern for those governments wishing to operate warships and carry out other 
military tasks under and over the sea. It threatens the mobility of warships, and 
hence their military essence. The doctrine of the "common heritage of mankind" 
has already been described as containing the germ of the progressive neutraliza- 
tion of the oceans. We are a long way from that, but we are also a long way 
from that navalist Eden when the seas were free and resources were plentiful, at 



Booth 101 

least for those with the will and power to exploit that situation. In the 1970s the 
traditional maritime regime fell back before the advancement of national claims 
that were given legitimacy by the international community. It is unlikely that 
this process will stop: it will only slow down. The result will be that large areas 
of the sea will be filled out with denser patterns of national administration. In 
the troubled common, the unilateralist impulse will be powerful in a world in 
which the belief is growing that there is not enough for everyone. 

As a result of the unilateralist impulse, the sea is becoming "territorialized." 
National administration over the land is extending seaward on matters of good 
order, the exploitation of resources, and the exercise of sovereignty. Territoriality 
is a politically relevent term, although international lawyers might quibble with 
its implications. In ethology, territoriality refers to an area over which one group 
is dominant: the group regards that area as its own private property and will resist 
intrusion by others. Increasingly, national groups are having such feelings about 
parts of the sea. Icelandic protection of "its" fishing grounds in the mid-1970s 
was a good illustration of such attitudes. The most salient aspect of the dispute 
was Icelandic feelings about ownership, not the actual state of the law of the sea. 

Creeping jurisdiction is here to stay. The natural tendency will be for 
governments to push out regulations into the EEZ, and in some cases even 
beyond. The impulse to govern efficiently will encourage such a trend, and 
economic and pollution problems will create plenty of incentives. All nations 
bordering on northern waters will want a bigger say in their own maritime 
backyards, areas that were formerly the unclaimed "blue water" of naval powers. 
It is from the rubbing together of these two interests and perspectives — coastal 
state management and blue-water naval strategy — that the longer-term naval 
implications of the changing law of the sea will derive. 

The implications of a more restrictive regime can be usefully discussed in 
relation to the main types of ocean area affected, namely, straits, the seabed, and 
EEZs. 

Straits. The only strategically important strait in northern waters is that leading 
into and out of the Baltic. Restrictions for warships were unilaterally imposed 
by Denmark in 1857, and were embodied in the 1958 convention. No more 
than three warships at a time can pass without special permission, and submarines 
have to pass on the surface. These restrictions present some problems for the 
Soviet Union, and at times it has indicated its misgivings; but to date it has 
followed the rules, at least as well as other nations. Vessels other than warships 
are governed by the right of innocent passage. 

Rights of transit through straits have been one of the major issues in UNCLOS 
III. It is a bone of contention on which there is still plenty to chew in the future. 
For the Baltic this might involve the passage of fewer ships at a time, the need 
for more advance warning, restrictions on the size and type of warships allowed, 
the prohibition of nuclear-powered ships, and so on. The opportunity to apply 



102 Readings on International Law 

such rules leniently or to the letter would give straits States important discretion 
over the passage of foreign warships. It would thereby enhance the strategic 
significance of those countries at the "chokepoints." 

Clearly, a more restrictive regime for the Baltic Straits would affect the Soviet 
Navy more than NATO, but a more restrictive Baltic regime is one with which 
both superpowers could live. However, their main opposition to such a trend 
would be concern about the extension of such principles to straits elsewhere that 
are of more importance to their national security. 

A major NATO interest in the Baltic is in showing that the sea is not a Soviet 
lake. This is thought desirable in order to reassure both allies and neutrals. NATO 
forces therefore occasionally exercise in the Baltic, mainly in the southern 
portion. In addition, ships are occasionally sent in on a non-NATO basis in order 
to demonstrate their right to be there. Soviet and other Warsaw Pact maritime 
activity is monitored by aircraft and naval vessels. These activities could still be 
maintained under a more restrictive regime but a change would imply, though 
not demand, that a greater responsibility for NATO maritime activity should fall 
on the shoulders of the local allies, West Germany and Denmark. Accepting such 
a burden would be a useful signifier of the international character of alliance 
responsibilities. 

For the Soviet Union a more restrictive Baltic regime would impede the 
activities of the Baltic Fleet, because its major chokepoint would be supervised 
by unfriendly (if not always uncooperative) States. Despite this disadvantage there 
are some countervailing considerations. The Soviet Union might welcome more 
restrictions on (nonlittoral) NATO activity in the Baltic. Furthermore, the areas 
to which the Baltic gives access can already be served by the Northern Fleet, 
which is bigger and more capable. Nor do restrictions on straits necessarily 
hamper either the buildup or diplomatic salience of naval forces. The success and 
visibility of Soviet naval activity in the Mediterranean since the mid-1960s, 
despite the Montreux Convention, is instructive in this respect. Finally, it is 
important to note that the Soviet Union, up to the late 1960s, periodically tried 
to get the Baltic, along with the Black Sea, declared a regional sea, effectively 
closed to nonlittoral States. Strategically the prospect of a more restrictive regime 
for the Baltic would not be unthinkable from the Soviet perspective. In practice, 
Soviet opposition to such a development would derive from its concern about 
the general principle of passage through straits, rather than this particular case. 
Movement toward more restricted naval activity in the Baltic, if it were ever 
thought desirable, would have to come from some version of a "sea of peace" 
idea, rather than from a change in the law of the sea as such. 

If a more restrictive regime were put into operation it would entail a variety 
of political problems with possible strategic implications. A more restrictive 
regime would increase the potentiality for disputes and conflicts between the 
straits States and military users; most importantly, this would involve the Soviet 



Booth 103 

Union and Sweden and Denmark, the former being neutral and the latter being 
one of NATO's smallest members. For naval considerations the Soviet Union 
would have an interest in increasing its influence over these states, by a mixture 
of carrot and stick, in order to encourage a favorable interpretation of the rules 
of passage. This might cause embarrassment for the straits States. A failure to 
agree with the Soviet Union, or the objection to the passage of a particular ship, 
might be regarded as an "unfriendly" act, and so cause important political 
repercussions. Alternatively, constant giving way on marginal cases would be an 
admission of weakness and lack of confidence. 

In sum, both superpowers could accept a more restrictive regime for the Baltic 
Straits without seriously degrading their overall strategy, but they are not likely 
to accept it as a change in the law of the sea because it might set precedents for 
strategically more important straits. It would therefore have to come about as a 
version of an arms control (disengagement) proposal, but even here the super- 
powers might fear precedents. In addition, the neutrals and NATO allies do not 
favor any move toward the idea of the Baltic becoming a closed sea dominated 
by the Soviet Union: and it is this factor rather than any purely military 
consideration that should govern NATO's attitude. 

The seabed. A more restrictive regime would attempt to define with more 
precision what was "military" and therefore presumably not "peaceful." This 
would be a frustrating exercise: even if any agreement were reached, there would 
be room for ambiguity. Despite such problems, calls for restrictions on the 
military use of the seabed can be expected, especially in the areas over which 
coastal States already have rights, and believe that they should have more. This 
means continental shelves and the seabed below the EEZ. 

There have already been harbingers of what might happen. In its adherence 
to the Seabed Treaty in 1973 India announced that there could be no restriction 
on its sovereign right to verify, inspect, remove or destroy any weapon, device, 
structure, installation or facility that might be emplaced on or beneath its 
continental shelf by any other country. The position of the United States was 
that the rights of coastal States were restricted to the exploration and exploitation 
of natural resources, and therefore were not concerned with military equipment. 
Further out, on the deep seabed, UNCLOS agreed that it be reserved exclusively 
for "peaceful purposes." The U.S. Navy, not surprisingly, has chosen to define 
seabed listening devices as falling under this heading. Some would disagree. The 
Soviet Union has similarly taken a permissive (conservative) attitude toward this 
problem, arguing that states have the same rights on the continental shelf as on 
the high seas. 

Because of the naval traffic patterns of both alliances in the northeast Atlantic, 
it is an area that is impregnated with listening devices. The U.S. SOSUS system 
has attracted most attention. If there were to be pressure for more restrictions 
on seabed military use, the major naval powers would object, because restrictions 



104 Readings on International Law 

would degrade their surveillance capabilities. In practice, it is difficult for 
nonspecialists to make evaluations about this problem because of the secrecy of 
the subject and hence the impossibility of being able to determine the significance 
of seabed sensors in the overall sum of the naval confrontation. To what extent 
will the next battle of the Atlantic depend on the information gathered from 
seabed listening devices? Specialists are divided about the capabilities of ASW in 
the foreseeable future. All one can say with confidence is that technical develop- 
ments will lead to steady improvements in whatever capability already exists. But 
will countermeasures improve commensurately, or even more quickly? In any 
case, the potential value of such devices in the event of war has to be set against 
the widespread belief that major war is unlikely. If this is the case, it might be 
argued that seabed listening capabilities might be sacrificed for political bargains 
in other aspects of the development of the law of the sea. 

The question of seabed listening devices raises the issue of the very desirability 
of tracking the adversary's SSBNs. If it is a superpower's intention to maintain 
an invulnerable second-strike capability, then it should be solicitous about its 
adversary's retaliatory force. Attempting to track an adversary's SSBNs will 
decrease his confidence in his second-strike potential, and as such will be 
"destabilizing" in the Western theory of mutual deterrence. From this point of 
view, strategic ASW is not only costly, but also strategically undesirable. But for 
NATO, ASW is not merely a matter of strategic deterrence: it is also concerned 
with protecting vital allied SLOCs. Monitoring Soviet submarine activity 
through the GIUK gap is at least as important in relation to tactical ASW 
(concerned with the potential defense of convoys) as it is with strategic ASW 
(concerned with countering the adversary's nuclear-strike potential). 

If pressures mount for a more restrictive regime that will affect seabed listening 
devices, we can expect opposition from both superpowers. The United States 
will be at the fore because of its reputed advantages in the "state of the art" and 
the special interest of NATO in tactical ASW. Nevertheless, some of the 
arguments above suggest that restrictions on seabed use could be accepted; this 
would obviously be the case if there were to be some technical developments 
that decreased the relative significance of seabed sensors. A more restrictive 
seabed regime would generally favor NATO because of its possession of the 
"waterfront real estate." As long as the northern members of NATO remain 
bound together, seabed military use in critical areas could continue: presumably 
even sensitive allies could allow such out-of-sight, out-of-mind activities. A more 
restrictive regime would increase the strategic significance of those countries with 
the relevant waterfront, Norway, Denmark (Greenland), the U.K., and Iceland. 
These countries would become even more important to the United States. In 
the case of the smaller countries, the increased significance of their location would 
give them increased intra-alliance bargaining power. 



Booth 105 

Because of the relative advantages presently and foreseeably envisaged for the 
United States in ASW techniques, the Soviet Union might be expected to see 
some advantages in a more restrictive seabed regime. But the problem for the 
Soviet Union in this respect is geographical rather than legal. Again, its chief 
objections, seabed restrictions in the north might derive from wider considera- 
tions, particularly the boost such a development would give to creeping juris- 
diction elsewhere. However, any restrictions on NATO activity in northern 
waters would be attractive to some Soviet naval strategists. 

The EEZs. Although UNCLOS III was particularly concerned about restric- 
tions on naval movement through straits, a more serious long-term concern for 
the naval powers is the possibility of restrictions on the passage of warships 
through EEZs. This would threaten naval activity in extensive areas that were 
formerly "high seas" and so "free" for transit and demonstration. For the 
immediate future warships have transit and other rights (by default, not designa- 
tion) but it can be expected that constraints will accumulate because of territorial 
impulses on the part of coastal powers, beginning in the reasonable guise of traffic 
and pollution control. Some coastal States have already shown their sensitivity 
to foreign warships and intelligence gatherers. 

Various restrictions can be envisaged. They include a requirement for prior 
notification, limitations on numbers in passage at any one time, a ban on certain 
types (intelligence gatherers or nuclear-powered ships), movement in designated 
sealanes or restrictions on "military" activities while in passage (no exercises, or 
ASW activity, or aircraft flights). Restrictions on the passage of submarines in 
EEZs would be difficult to inspect and enforce, but claims to restrict them might 
nevertheless be made. If this were to become widespread, it could be embarrass- 
ing for the naval powers to ignore them. The discovery of a foreign submarine 
through accident or other means in areas claimed by the coastal State would entail 
diplomatic costs. Other possible restrictions include a maritime version of air 
defense identification zones. Pollution-conscious Canada has already taken steps 
in this direction for the control of merchant ships. Such procedures will probably 
spread. Will they also come to encompass warships? 

The possibility of the growth of restrictions such as those suggested above 
would threaten the mobility of warships and therefore would appear to under- 
mine their usefulness as instruments of foreign policy in peacetime. Normal 
deployment patterns would be interrupted, crisis deployments would be 
hindered, and some scientific work with military value might be prohibited. 

Because of the configuration of the lands and seas in northern waters, such 
changes would affect the Soviet Union more than NATO. There is a "NATO" 
EEZ barrier across the access routes of the Soviet Northern Fleet. In contrast, 
U.S. and other NATO forces would have unrestricted access to most normal 
operating areas, with the exception of parts of the Barents Sea. A more restrictive 
EEZ regime would be a major impediment for the Soviet Union's oceanic navy. 



106 Readings on International Law 

Soviet authorities would therefore attempt to stand out against any drift in this 
direction, though some of its objections might not be as strong as otherwise might 
be expected if those analysts are correct who have argued that the anti-SLOC 
mission has a low priority in the Soviet naval mission structure. 

International norms will change, regardless of Soviet preferences. Territorial 
impulses on the part of coastal States seem likely to be especially strong in 
northern waters, bounded as they are by States that are technologically advanced, 
energy-short, maritime-minded, and administratively competent. If restrictions 
are to grow in the north it would seriously complicate Soviet naval behavior. 
The United States, on the other hand, could more easily operate within a more 
restrictive regime, inasmuch as its allies control the important coastal waterfront. 
This condition would not be present in most other parts of the world, and so 
the United States would be concerned about endorsing the general principle of 
the extension of territorial control. As a result, both superpowers would share a 
common and hostile attitude toward restrictions on the passage of warships 
through EEZs. 

Should a large section of the international community decide in favor of 
increased restrictions on foreign warships in EEZs, both superpowers would have 
to consider a variety of possible regional military implications. It would mean 
that if the U.S. Navy is to continue to have a free run of the northeast Atlantic, 
then it would be imperative to maintain the loyalty of the allies. The withdrawal 
from the alliance of any one of the northern flank allies would be even more 
serious than at present. This in turn would give those states increased bargaining 
power over the United States. On the Soviet side, the potential use of its navy 
for crisis deployments in the North Atlantic would be seriously challenged, but 
so far this role has been very limited. To overcome some of its problems the 
Soviet Union might attempt to negotiate special arrangements with particular 
coastal countries in order to ensure continuing naval access; rejecting such a 
proposal might be politically embarrassing for any coastal country. If, in the event 
of a more restrictive regime being claimed, the Soviet Union felt it had to 
disregard the wishes of a coastal State in a particularly urgent case, this could 
create a difficult diplomatic situation, but not one the Soviet Union would avoid 
if its "vital interests'* were affected. Soviet leaders might be willing to pay the 
diplomatic price involved or, alternatively, might attempt to circumvent the 
problem by keeping more forces fully deployed forward, in order to avoid any 
delay in reaction time in a crisis. This would put a premium on strategically 
placed countries for the use of their bases and facilities. The Caribbean and West 
Africa would be the likely areas of increased Soviet interest. This requirement 
would complicate Soviet foreign policy, but it would also add a new direction 
of threat to NATO shipping in the event of war. 

It should be evident that it would not be impossible for either superpower to 
live with a more restricted regime in northern waters, but it also should be evident 



Booth 107 

that neither would welcome such a development because of its naval implications 
both regionally and further afield. Regionally the difficulties would be much 
more serious for the Soviet Union, but the rights being questioned are those that 
the United States would particularly not wish to concede elsewhere. Conse- 
quently, the superpowers will resist change. Although they would hold out 
strongly on issues affecting national security, it should be remembered how 
quickly their positions changed on the 200-mile zone when faced by the bulk 
of the international community. Norms that do not have the support of the most 
powerful will always be shaky, and their codification into law might prove 
impossible, but one should not underestimate the capacity of the more powerful 
to adjust in the face of changing circumstances. In this case naval interests could 
be overcome by economic or political arguments and lobbies. If, as was suggested 
earlier, the territorialization of coastal zones becomes irresistible (and restricting 
the activities of foreign warships might well prove a very popular step), this trend 
would become an international reality that it would be difficult for the super- 
powers to ignore. 

Naval Diplomacy and Arms Control: The Effects of Creeping Jurisdic- 
tion. Assuming an irresistible drift towards a more restrictive regime, we should 
now examine the implications for naval diplomacy (the use of warships in support 
of foreign policy) and for the increasingly confused and maligned concept of arms 
control. 

Naval diplomacy. The almost unanimous opinion in naval circles is that a more 
restrictive LOS regime would seriously hamper naval mobility, and hence would 
be undesirable. In contrast, it can be argued that while a more restrictive regime 
would certainly pose many new problems for major navies, it would also provide 
new challenges and opportunities. Indeed, it can be argued that a new and more 
sensitive patchwork of maritime jurisdiction would not hobble naval diplomacy 
but would in fact rescue it from some of its difficulties in recent years, where it 
seems to have suffered somewhat as a signaling device. 

Jurisdictional changes will open up new diplomatic possibilities for warships. 
Opportunities will be present for both supportive and coercive signaling, and all 
the gradations between. Naval displays in friendly waters will take on more 
significance because of the increased "national** feeling about such waters, and 
so this traditional usage will be enhanced. Similarly, there will also be more scope 
for coercive uses. There will be new boundaries to cross, and these will entail 
political, legal, economic, and diplomatic costs, not to mention the possibility of 
facing physical opposition. The territorialization of the sea will bring about new 
restrictions, but this very development will enhance the importance of naval 
diplomacy. Naval diplomacy will be used less, but it will be more visible. 

In future, the problem will not be whether opportunities will exist for a 
renewal of naval diplomacy, but whether and how they can be exploited. We 



108 Readings on International Law 

can expect that they will be exploited in northern waters, and for three main 
reasons. First, the hardware is in existence, and there will be an impulse to find 
employment for expensive assets. Secondly, it is unlikely that there will be any 
basic change in the NATO- Warsaw Pact confrontation in the foreseeable future. 
The need will remain for the countries involved to reassure allies, and to deter 
or coerce adversaries by military means. Finally, signaling by military means is 
particularly important and subtle in the North Adantic region. It has a very 
receptive audience. 

The signals of naval diplomacy are already carefully scrutinized. The Soviet 
Union has for over 30 years been sensitive to NATO naval activity, and recently 
Soviet naval behavior has received the same attention in the West. So far the 
Soviet Navy has had limited diplomatic scope in the North Adantic but, within 
limits, its general-purpose naval forces have been an active instrument of political 
influence in the region. This tendency would be increased rather than decreased 
by creeping jurisdiction. The Soviet Union would use naval diplomacy to 
maintain rights of presence against the development of restrictive norms. In 
addition, the politicostrategic importance of the area, together with the new 
boundaries, will give the Soviet Navy the opportunity to send signals with high 
political visibility (but also with the opportunity to withdraw with relative ease). 
There have been harbingers of such possibilities. The new sensitivity toward 
maritime affairs, and also the scope for manipulating this sensitivity by displays 
of "power in evidence," has been seen in the anxiety shown by North Sea states 
at the presence and evident interest of Soviet warships in oil rigs and other 
installations. Soviet behavior has been legal, but it has raised Western tempera- 
tures. Related Soviet behavior can be expected in future, for so much of the 
international politics of the region is conducted by the manipulation of 
psychological processes. Discussion of the international politics of the region is 
characterized by words and phrases such as deterrence, reassurance, looming power, 
military overhang, provocation, and confidence building. It is a region in which the 
vocabulary of psychostrategic confrontation can be fully employed: it is, after all, 
the home of the much used and often criticized, but well understood concept 
of "finlandization," the idea of political accommodation to predominant military 
power. In such an area, new boundaries, and the significance of crossing them 
for either supportive or coercive purposes, will add to the vocabulary of 
psychostrategic signaling. 

There is developing what Hedley Bull has called "a maritime territorial 
imperative," involving feelings about the sea that are much closer to those that 
nations have previously had only about their sovereignty over the land. 
Nevertheless, the new boundaries at sea will obviously remain less clear, less 
immediately sensitive and further from national nerve-endings than those on 
land. For this reason, nations will never be as sensitive to warships passing through 
their seas as they always have been, for obvious reasons, to armies tramping over 



Booth 109 

their national homelands. But the more feelings about the ownership of the sea 
grow, the more will the two sensitivities converge. Together, relative freedom 
of movement across the sea and growing national sensitivities about the sea will 
provide future opportunities for dramatic naval diplomacy. 

Arms control. The immediate future is not propitious for the development of 
arms control, given the present chilly relations between the superpowers and the 
widespread belief that the next 5 years are likely to be more dangerous than any 
period since 1962. The prospects would seem to be particularly bleak in northern 
waters, for even examinations of the subject in calmer times concluded that there 
was little promise of mutually agreeable schemes. 

Despite such gloomy but realistic prognostications, the present might be a 
good time to start rethinking one form of naval arms control, namely strategic 
ASW. First, it will be argued that creeping jurisdiction together with various 
economic and strategic considerations makes this a more promising idea than 
hitherto. Secondly, experience suggests that when a chilly period gives way to a 
relaxation of tensions, then this may be a productive time for arms control 
proposals, and new ideas might be more effective than warmed-up old ones. 
Thirdly, it is important from all points of view to try to slow down the arms race, 
and it is not too soon to be working to head off decisions that might be made 
around 1990 for the weapons of the next century. Among these decisions, those 
affecting strategic deterrence will remain paramount. 

Controlling ASW would be a tricky business. It has been discussed occasional- 
ly in the past, but has made no practical progress. It remains a topic on the arms 
control agenda, but a low priority. In its latest manifestation it was suggested as 
a possible subject for SALT III, if SALT II comes to pass. Despite present 
problems and prognostications there are some positive aspects to the control of 
strategic ASW. It is an idea whose time might yet come, for it is an idea in which 
arms control and long-term law of the sea developments overlap and promise to 
enhance the stability of deterrence. 

Support for controlling strategic ASW has been based on two main arguments. 
First, it is sometimes claimed that ASW is "destabilizing." Strategic ASW 
threatens the invulnerability of ballistic-missile firing submarines, and it is 
undesirable if either adversary believes that any element of its second-strike forces 
could be neutralized by a preemptive attack. Such a belief encourages worst-case 
analysts to credit the adversary with first-strike intentions. This generates anxieties 
that in a crisis might produce pressure to move first, in order to preempt the 
putative preempter. Secondly, the control of strategic ASW has been thought 
desirable because its steady progress fuels continued research and development 
to improve submarines and their missile systems. This produces a cosdy and 
self-defeating spiral, which results in no more security, only greater weapons 
sophistication, cost, and political suspicion. For these reasons, control of strategic 
ASW should slow down the arms race and enhance mutual deterrence. 



110 Readings on International Law 

Superficially, the attractions of controlling strategic ASW are considerable. 
But most arms control proposals are like icebergs, with most of their obstacles 
hidden from immediate view. This is the case with strategic ASW. It has made 
no practical progress. The idea has floundered on the difficulty of distinguishing 
between so-called tactical and so-called strategic ASW. NATO has a continuing 
interest in improving ASW techniques in order to protect convoys. 

No progress in this form of arms control is foreseeable as long as the problem 
is conceived as a matter of making distinctions between tactical and strategic 
ASW. In ASW the systems, techniques, and ideas developed for one are 
transferable to the other. But there is one possible way forward, and that is 
through distinctions based on geography rather than missions. An ASW disengage- 
ment scheme faces many obstacles, but this approach offers more promise than 
other schemes. The ASW disengagement scheme proposed below is based on 
the idea of prohibiting ASW in the EEZs of the superpowers (ASWEEZ for 
short). The scheme would effectively demilitarize the EEZs of the superpowers 
for all but their own and allied naval activity. To be effective it would therefore 
require a big conceptual jump, especially on the part of naval establishments. 

Before discussing other obstacles facing ASWEEZ, it is necessary to identify 
the factors that make it worth serious consideration: 

The potential for Soviet interest in ASWEEZ: The Soviet Navy has become 
increasingly worried about the development of U.S. ASW capabilities. In recent 
years an important element of Soviet naval activity has been devoted to protecting 
its SSBN force in the Barents Sea. With the Delta-class submarine, and its 
associated missiles (the SS-N-8 and SS-N-18), the Soviet Union can hit all the 
U.S. homeland from the Barents Sea. It is therefore unnecessary for this type of 
submarine to leave the EEZ in order to discharge its strategic mission. In time 
the Yankee-class submarine will be progressively replaced by classes with longer- 
range missiles (the Yankee's SS-N-6 and SS-NX-17 have ranges of 1,750 nm and 
3,000+ nm respectively). This will mean that it will not be necessary for any 
Soviet submarines to leave the Barents Sea in order to be in a suitable firing 
position. 

A scheme to prohibit U.S. strategic ASW in the Barents Sea might therefore 
be welcomed by Soviet strategists because this threat has grown and helped shape 
Soviet naval developments since the late 1960s. The codification of a Barents 
Sea "sanctuary" or "bastion" would be in line with the direction of present 
doctrine, with its SSBN protection mission. The main disadvantages for the 
Soviet Union in such a scheme would appear to be the relative geographical 
concentration of its SSBN potential and the relative shallowness of the Barents 
Sea. These need not be insurmountable obstacles given the huge area enclosed 
by the Soviet 200-mile zone (an area that makes the MX racetrack look like a 
sitting duck). In addition, these marginal disadvantages would have to be set 



Booth 111 

against the advantage that U.S. ASW forces would no longer be able to search 
for Soviet SSBNs in large expanses of ocean. 

The potential for U.S. interest in ASWEEZ: If Soviet ASW efforts were 
prohibited within 200 miles of the U.S. coast, this would significandy decrease 
the threat of Soviet tracking of U.S. SSBNs as they leave their U.S. bases. The 
scheme would not inhibit NATO's tactical ASW efforts, as only the Barents Sea 
would be excluded from Western ASW activity. Unlike the last war, this is an 
area in which allied convoys are least likely to operate. The scheme would still 
allow SSBNs to leave their 200-mile sanctuaries. However, cost, maintainability, 
crew comfort, and the maintenance of relative invulnerability would be strong 
incentives to restrict patrols to one's coastal zones, where the adversary's ASW 
threat would be minimal. 

From the U.S. point of view the ASWEEZ approach is in line with the 
thinking of the advocates of small strategic submarines. The advocates of SUM 
(Shallow Underwater Mobiles) favor buying invulnerability by investing in the 
missile rather than in the launch vehicle; they argue that a greater number of 
smaller, less costly and less sophisticated submarines operating near U.S. coasts 
represents a better option, strategically, financially, and environmentally, to 
systems such as Trident or the MX. In addition, if it were eventually to lead to 
the deployment of all the deterrent at sea, it would have the considerable benefit 
of separating people and the primary targets of a first-strike attack, namely one's 
retaliatory force. 

A scheme to prohibit Soviet strategic ASW off the U.S. coasts might therefore 
be welcomed by at least some U.S. strategists on the grounds that it promises a 
more secure and less costly means of strategic strike than those presently foreseen. 
It might play some part in slowing the arms race (by diminishing the pressure to 
improve submarines) and it would also enhance mutual deterrence. Opposition 
to ASWEEZ would be minimized because the scheme would not interfere with 
the free-ranging assets of existing SSBNs, and it would not interfere with tactical 
ASW. 

The scheme suggested is a logical extension of, but in important ways different 
from, a combination of ideas that have been mooted in the past. In particular, it 
is an extension of Michael MccGwire's proposal for a mutual limitation of SSN 
forces together with the transferring of the SLBM inventory from the Trident 
SSBN to a "spartan diesel submarine force" operating in coastal waters. 
MccGwire's scheme was offered in the interests of slowing down the arms race 
and stabilizing mutual deterrence. ASWEEZ overcomes some of the difficulties 
of the MccGwire scheme, but has problems of its own. The main difference 
between the two schemes is simple: whereas MccGwire's scheme concentrates 
on keeping SSBNs operationally tethered to home waters, ASWEEZ con- 
centrates on keeping adversary ASW efforts out of those waters. As a result, in 
the MccGwire scheme, distant-water strategic ASW is supposed to wither away; 



112 Readings on International Law 

in the ASWEEZ scheme stopping such behavior is mandatory. A final difference 
is that the MccGwire scheme awaits the building of SUMs, or a major decision 
to concentrate the seaborne deterrent in such vehicles. ASWEEZ does not 
depend upon such decisions. SUMs would be a possible consequence, not a 
necessary precondition for ASWEEZ. 

ASWEEZ has several additional advantages over other ideas that have sought 
to control strategic ASW: 

• It should be easier to negotiate. There is no actual disarmament. There need 
be no wrangle over numbers, one of the familiar stumbling blocks in arms control 
negotiations. Definitional problems are present, but by the standards of the day 
should be relatively small. 

• Verification should not be a major problem. The superpowers can have 
some confidence in verifying whether adversary ASW efforts are taking place 
within their EEZs. In contrast, they cannot feel confident that the adversary's 
SSBNs will necessarily remain close to home, as is expected in the MccGwire 
scheme. Existing SSBNs are big investments and are unlikely to be scrapped, and 
any transformation to a spartan diesel force might take many years. 

• ASWEEZ should be politically acceptable to third parties. The scheme is 
tied to the generally accepted 200-mile line rather than any other sanctuary 
demarcation line. Other lines might leave Norway stranded behind an advanced 
Soviet maritime frontier. In ASWEEZ, Norway's geopolitical position remains 
unchanged. Nor need the other neighbors of the Soviet Union fear that Soviet 
warships are being left supreme in any but legally accepted Soviet waters. 

• ASWEEZ maintains SSBN flexibility. The scheme envisages that SSBNs in 
existence will retain their present flexibility to go wherever their planners think 
desirable. This would minimize the domestic opposition that would face the idea 
of imposing strict geographical limitations on their use; such limitations would 
negate what has been one of the chief selling points of SSBNs over the last 20 
years. In practice, the existing SSBN forces may choose to stay in well-protected 
coastal waters, and may in time wither on the vine into MccGwire's spartan force, 
but under an ASWEEZ regime this would be a matter of choice, not necessity. 
The choice might well be made because of the advantages of staying in 
well-protected coastal waters from which adversary ASW forces are excluded. 

• ASWEEZ does not demand any major shift in nuclear doctrine. The 
MccGwire scheme in part rests on a belief that stability is best served by mutually 
assured destruction rather than a more explicit fighting strategy. Unfortunately 
for this scheme, there has been a convergence of superpower strategies toward 
the latter. ASWEEZ does not require a change in strategic doctrine, apart from 
a willingness to trade a loss in damage-limitation capability for a gain in assured 
destruction. This should enhance deterrence. However, by leaving SSBNs to 
roam free, ASWEEZ still leaves open the option (for good or ill) of using the 



Booth 113 

SSBNs in a counterforce role (by operating them at short range against time-sen- 
sitive targets). 

In addition to these points of difference with the MccGwire scheme, some 
common advantages are shared. Both schemes aim at "confidence-building.'* If 
SSBNs were to be kept in home waters, and especially if they had no capability 
to go further, this would limit their potential as first-strike weapons. In the sense 
that strategic ASW is a first line of defense (or possibly offense), the pulling back 
of these forces should contribute to enhanced confidence in one's own retaliatory 
forces. This is especially important in the years ahead, when nuclear nerves are 
likely to be less calm than in the last decade. Given their fear of the spillover of 
a superpower conflict, this should be some comfort to the Nordic countries. 
Both schemes promise to stop arms competition and enhance mutual deterrence. 

As with other arms control schemes, ASWEEZ faces important problems and 
obstacles. ASWEEZ would give a big boost to creeping jurisdiction. The 
international significance of the EEZ would be greatly enhanced: the super- 
powers would appear to be conceding the important principle of keeping their 
warships out of the EEZs of other countries. In practice, ASW forces would 
probably have to be defined as all adversary warships (a concept that could cause 
some definitional problems). Clearly, scientific research vessels could covertly 
engage in ASW. Definition and regulation would have to be strict. But this might 
be a problem time will solve, as creeping jurisdiction leads to increasing state 
control over all "research" activities in adjacent EEZs. Verification would be a 
difficult problem. As with SALT, reliance would have to be placed on national 
means and there would be scope for cheating. In the event of the latter, the only 
sanction, as with other arms control treaties would be the threat of abrogation. 
Uncertainties about the verification of subsurface activity would be a strong 
inhibition, especially as governments would be reluctant to reveal in any detail 
the quality of their ASW detection. As with other arms control schemes, 
ASWEEZ might rechannel arms competition into other areas. In particular, 
ASW efforts would be channeled into space. There would be opposition from 
those who would argue on strategic grounds (or from vested interests) against 
concentrating strategic strike at sea and, within that, concentrating the SSBN 
force in smaller areas. Finally, there would be criticism from those opposing any 
arms control that threatens to reduce one's ability to engage in damage limitation, 
as ASWEEZ would degrade strategic ASW in the event of war. If the present 
counterforce trend continues, such an argument will have powerful backers. 

At present, the prospects for ASWEEZ are very poor. But as the costs of 
submarines escalate, and as steady progress continues with the multidirectional 
efforts at ASW, the attractiveness of SSBN sanctuaries will grow. When that time 
arrives the Soviet Union will no longer need to send any SSBNs out into the 
Atlantic in order to hit their targets. It might also be a time when governments 
in an ameliorating international atmosphere are looking for signals of reassurance. 



114 Readings on International Law 

It might be a time for conceptual jumps and diplomatic trading. At that moment, 
the law of the sea, arms control, and naval strategy might walk hand in hand. 

Conclusion. The emphasis in public LOS discussions to date has been on 
resource rather than strategic questions. Military considerations have played an 
important part in the policies of some delegations, but the prudence of the 
participants has helped UNCLOS III to avoid disagreements on military issues 
from interfering with generally constructive efforts in other spheres. In the 
post-UNCLOS III period there will be less cause for such silence, especially if 
important Afro-Asian countries become seriously worried by the new dangers 
of superpower rivalry in the Third World, and if the projection of naval power 
looks like playing an important role in this competition. Once resource issues 
become more settled with the completion of UNCLOS III, there is some 
expectation that issues of national security will come to the fore. Significantly, 
some Third World spokesmen have already claimed that the support of the naval 
powers for a narrow territorial sea represented not so much a defense of the 
internationality of the oceans, but more a tactic by which they could legally place 
their warships as close as possible to the shores of coastal states. Whatever the 
details of the final treaty, the maritime world will be different after UNCLOS 
III: UNCLOS III has helped to create a new image of the oceans, and hence a 
new reality. Preeminently, this reality includes the legitimization of the idea that 
coastal states can and should have greater control over their own newly extended 
maritime backyards. The future is merely a matter of settling the details of size, 
shape, and degree of control. 

For the ill-defined "short-term," this paper has argued that there are no new 
important strategic implications for northern waters arising out of UNCLOS III. 
A possible but unlikely exception arises out of the scope for disunity in NATO 
that might result from the process of applying the new rules. A more important 
danger arises from the Soviet interest in the future of Svalbard and its surrounding 
waters, and the problems this will entail for Norway. In this issue, and in other 
matters of regime change, stability at sea requires that the law be supported both 
by generally agreed norms and by visible naval and air policemen. This new 
emphasis on constabulary tasks will affect the plans and operations of all the navies 
of the region, but it is obviously the smaller ones that will be the most preoccupied 
by law of the sea concerns. 

In the ill-defined "longer term," creeping jurisdiction seems irresistible. This 
will have major military implications in northern waters, especially for the Soviet 
Union. A more restrictive regime will seriously threaten Soviet naval access to 
strategic waterways, an access already hindered by geographical disadvantages. 
Not surprisingly, therefore, Soviet attitudes to LOS issues have always been very 
political and have generally been conservative. 



Booth 115 

Because of their control of the relevant waterfront, the NATO allies would 
be in a strong position relative to the Soviet Union in the event of a more 
restrictive maritime regime, though both adversaries would find the restrictions 
inconvenient. For reasons to do with the desire to maximize their global maritime 
mobility, both superpowers could be expected to resist trends toward restriction. 
Naval establishments in particular would be hostile to such developments. But 
it has been argued that both major navies could live with a more restrictive regime 
and still make their basic contribution to their country's foreign policies and 
wartime strategies. Indeed, the new boundaries and new sensitivities would give 
the exponents of naval diplomacy additional opportunities to signal either 
displeasure or support. In this respect the Soviet Union would have opportunities 
for exploiting what some see as an isolated and vulnerable flank of the alliance. 
The details of Soviet naval behavior are already monitored very closely, and this 
will undoubtedly increase in the future, for the Western defense community has 
a growing corps of teachers and interpreters of naval sign language. 

Although Western naval establishments are opposed to a more restrictive LOS 
regime, naval interests and overall foreign policy interests are not necessarily 
identical. One implication of this paper is that if there are political, economic or 
other reasons for Western States moving towards a more restrictive regime, then 
the naval situation in northern waters need not inhibit such a move. NATO 
naval activity would not be hobbled, and it would have a relative advantage. The 
problems facing maritime mobility would lie in areas outside northern waters. 
There is a tendency in the West to invest any status quo with moral authority, 
and to see change as being for the worse. This is not always so. States can and 
do use changes in the LOS as a continuation of political, economic, and strategic 
interests. This paper has argued that the Western allies can accept a more 
restrictive regime in northern waters without detracting from the value of their 
naval sign language. 

The ultimate in naval sign language, of course, is the business of strategic 
nuclear deterrence. Ensuring that this business is successful will be a more pressing 
imperative in the decade ahead than it was in the decade just passed. Growing 
fears of instability and imbalance, between the superpowers and regionally, draws 
renewed attention to the importance of managing the central balance effectively. 
Nothing is more nightmarish than the prospect of a general nuclear barrage: it 
would represent the omega of unstrategic competition. Therefore the most 
challenging problem for strategists and policymakers in the years ahead is to 
develop ideas and programs that promise to strengthen deterrence, restrain arms 
competition, and do whatever possible to limit the loss of life in the event of 
war. 

The ASWEEZ scheme is offered as one possibility worth serious considera- 
tion, difficult though it might presently be to conceive and implement. If it could 
be agreed, ASWEEZ promises to strengthen deterrence and slow down an 



116 Readings on International Law 

important sector of the arms race. Because of its evident benefits it might lead — it 
would be desirable if it did — to a transfer of all nuclear deterrent forces to sea. 
What would be lost in terms of the diversity of systems present in the triad concept 
would be more than compensated by the increased invulnerability of the 
submarine system remaining, and by the release of financial and other assets in 
the other services for increasing nonnuclear deterrence, strengthening diplomatic 
potential, and applying power in theater roles. In order to overcome the 
bureaucratic obstacles to an all-maritime deterrent in the United States, it might 
be necessary to create a new and separate strategic deterrent branch of the armed 
services. 

The advantages of ASWEEZ extend into war. Although the scheme would 
entail a degradation of strategic ASW, and therefore some loss in damage 
limitation, this marginal loss would be more than compensated by the physical 
separation of population centers and retaliatory systems if all the deterrent force 
was put to sea. Under ASWEEZ, not only would a disabling first-strike attack 
on retaliatory systems be less likely (because success would be more difficult), 
but in the event of it occurring it would not be an attack against the "homeland" 
as such, and therefore it would not be as likely to trigger an act of punishment 
against the enemy's population. In short, ASWEEZ could be the key to opening 
a number of locks which within 20 years could offer more stable deterrence, less 
risk of a first-strike strategy, fewer casualties in the event of war, and the release 
of greater military (and therefore diplomatic) potential for the more thinkable 
contingencies that lie around the corner. 



Ken Booth was a Senior Research Fellow at Dolhousie University when he wrote this article. 
In 1977 he served as a Research Scholar at the Center for Advanced Research, Naval War College. 



Notes 

1. See Hoist, Prospects for Conflict, Management, and Arms Control in the North Atlantic, in BERTRAM & 
HOLST, NEW STRATEGIC FACTORS IN THE NORTH ATLANTIC 120 (1977). 

2. For an earlier discussion, see Young, Jurisdiction at Sea, World Today 200 (June 1978). 

3. Buzan, A Sea of Troubles? Sources of Dispute in the New Ocean Regime, no. 143 Adelphi Papers, at 45-48 
(London: International Institute for Strategic Studies, Spring 1978). 

4. Id. at 20-24. 

5. O'Connell, Resource Exploitation, the Law of the Sea and Security Implications, in supra n. 1. 

6. A speculative discussion of this system in Friedman, SOSUS and U.S. ASW Tactics, U.S. Nav. Inst. 
Proc. 120-123 (March 1980). 

7. Under the Eastern Canadian Traffic Regulations System (ECAREG) all ships over 500 g.r.t. entering 
the ECAREG traffic zone are required to request clearance 24 hours in advance. The stated objective of the 
regulations was to reduce the danger of pollution and increase traffic safety. The system may well extend to 
200 miles. The system is discussed by Gold and Johnson, Ship-Generated Maritime Pollution: The Creator of 
Regulated Navigation, (a paper presented at the 13th Annual Conference of the Law of the Sea Institute, Mexico 
City, October 1979). 

8. For recent discussions of Soviet naval mission priorities see, among others, GEORGE, PROBLEMS OF 

sea Power as we approach the Twenty-First century at 43-44, 70-79, 83-84, 201-206; (1978); 



Booth 117 

MURPHY, NAVAL POWER IN SOVIET POLICY at 8-9, 52-54, 163-166, 227-229; (1978); a range of possible 
countermeasures is discussed in NlTZE & SULLIVAN, SECURING THE SEAS (1979). 

9. This and some other of the general problems in this paper are discussed in Booth, The Military 
Implications of the Changing Law of the Sea, in GAMBLE, LAW OF THE SEA: NEGLECTED ISSUES (1979). A 
revised and much expanded version of these arguments is in preparation and will be published under the tide 
LAW, FORCE, AND DIPLOMACY AT SEA by ALLEN & UNWIN. 

10. For example, Weinland, The State and Future of the Soviet Navy in the North Atlantic, supra n. 1 at 53-73. 

11. Bull, Sea Power and Political Influence, Power at Sea I, no. 122 Adelphi Papers 8 (London: International 
Institute for Strategic Studies, Spring 1976). 

12. Supra n. 1 at 135. 

13. MccGwire, The Rationale for the Development ofSeapower, U.S. Nav. Inst Proc. 166-167 (May 1980). 

14. MccGwire, Soviet-American Arms Control, Prepared for the United Nations Association Soviet- 
American Parallel Studies Program at 50 (November 1978). 

15. Id. at 71-72. 

16. Janis, Sea Power and The law of the Sea 69-70 (1976). 

17. On the Soviet use of ocean law to further policy see Young and Sebek, Red Seas and Blue Seas: Soviet 
Uses of Ocean Law, Survival 255-262 (November/December 1978). 



Chapter 9 

The Marine Environment and Maritime 

Security in Southeast Asia: 

Controlling Oil Tanker Traffic in the 

Strait of Malacca* 



Daniel P. Finn 



The Straits of Malacca and Singapore ("Straits of Malacca") which lie 
between the southern Malay Peninsula, Singapore, and the island of 
Sumatra, have historically been a major international maritime route between 
the South China Sea and the Indian Ocean. In the post- World War II period 
the Straits have become especially important internationally owing to the passage 
of oil tankers from the Gulf States of the Middle East to the rapidly growing 
economies of East Asia, especially Japan, and to naval deployments, including 
those of the United States and the Soviet Union, in the Pacific and Indian 
Oceans. Following the "oil shock" of 1973-74, which revealed the extent of 
the dependency of the economies of the industrialized democracies on Middle 
East Oil, the tanker routes from the Gulf, through the Strait of Hormuz and 
around the Horn and Cape of Africa through Southeast Asia — became a focus 
of international concern over energy security. Both the growing impatience of 
certain coastal States with the pollution caused by passing tankers and their 
security concerns with passing warships, as well as the possibility of naval action 
involving the tanker routes during times of crisis, posed important questions 
about the security of these routes. In Southeast Asia, the concern of the coastal 
States of the Straits of Malacca — Indonesia, Malaysia, and Singapore — with 
tanker and warship traffic in the Straits threatened, in the early 1970s, to affect 
this important maritime route. 

The Threat of Jurisdictional Conflict Over Vessel Traffic in the Straits. During 
the early 1970s many coastal States formally claimed a 12-nautical mile territorial 
sea. As a result of these claims, many important straits traditionally used for 
international navigation ("international straits") would be incorporated within the 
territorial seas of their coastal States. Although the United States has historically 

* Reprinted from the Naval War College Review November-December 1981. 



120 Readings on International Law 

recognized only 3 miles as a valid territorial claim, international disagreement on 
this point had prevented the first United Nations Conference on the Law of the 
Sea (UNCLOS) from including a uniform standard on the permissible breadth 
of the territorial sea in the 1958 Geneva convention on the territorial sea. 
UNCLOS III, in session since 1973, would recognize the validity of the 12-mile 
territorial claim as part of a comprehensive diplomatic package that would also 
protect maritime passage through international straits, prescribe the offshore 
jurisdiction of coastal States (including their jurisdiction over the continental shelf 
and a newly created 200-mile exclusive economic zone or EEZ), establish an 
international regime for deep seabed mining, and help define the rights and 
obligations of States with respect to pollution of the marine environment. With 
respect to passage through international straits, UNCLOS III would create a 
regime of "transit passage" — a set of special rules for international navigation 
through straits the waters of which would otherwise have become subject to the 
rules applicable within territorial seas. 

In November 1971 the Governments of Indonesia, Malaysia, and Singapore 
issued a joint declaration that, if implemented, could have significantly affected 
the legal status of the Straits of Malacca. 

• The three Governments agreed the safety of navigation in the Straits of 
Malacca and Singapore is the responsibility of the coastal states concerned; 

• The three Governments agreed that a body for cooperation to coordinate 
efforts for the safety of navigation in the Straits ... be established as soon as 
possible and that such body should be composed of only the three coastal States; 

• The Governments of Indonesia and Malaysia agreed that the Straits . . . are 
not international straits, while fully recognizing their use for international 
shipping in accordance with the principle of innocent passage; 

• The Government of Singapore took note of the position of the Govern- 
ments of the Republic of Indonesia and Malaysia in this point. 

In this declaration, the three Governments announced their intention to 
assume competence over controlling international vessel traffic in the Straits. The 
Governments of Indonesia and Malaysia would have gone further and declared 
that passage through those parts of the Straits within their territorial waters was 
fully subject to the ordinary principle applicable in such waters — "innocent 
passage" — and not to any special principles applicable in international straits. 
(Under the 1958 Geneva convention on the territorial sea, foreign vessels passing 
through a territorial sea are allowed to proceed freely if they are in innocent 
passage; innocent passage may not be "hampered" by a coastal State, except for 
temporary suspension for security reasons. In straits used for international 
navigation, however, through passage may not be suspended. Passage through a 
territorial sea is presumed innocent unless it is "prejudicial to the peace, good 
order or security of the coastal State.") If international passage through the Straits 
had become subject to the rule of innocent passage, the operations of oil tankers 



Finn 121 

and naval vessels could have been affected, inasmuch as at the time of the joint 
declaration coastal states had begun to question the "innocence" of operations 
by such vessels and to claim some jurisdiction over them. This was true especially 
for oil tankers, in the aftermath of several serious tanker casualties that polluted 
coastal waters. This article will examine the background and significance of the 
joint declaration and its resolution to date through international legal and political 
means. The history of regulation of oil tanker traffic in the Straits of Malacca 
provides an excellent example of the significance of marine environmental 
concerns and the role of international law and organization in safeguarding 
maritime security. 

TTie Background of Jurisdictional Conflict Over Navigation in the Straits of 
Malacca. The efforts of the three coastal States to obtain greater control over the 
Straits, through their joint declaration and other actions, was based on a complex 
of factors including the pollution and safety risks associated with large tanker 
traffic, as well as regional security concerns. But these factors affected each of the 
three States somewhat differently, and the formulation of an integrated regional 
response to the environmental and security issues was impeded by the divergence 
of local interests. 

As the size and number of tankers to serve the needs of Japan and other East 
Asian countries rapidly increased in the period prior to 1973, their navigation 
through the Straits presented increasingly obvious safety problems. In 1967 
Tokyo Maru, a 151,288 deadweight ton (dwt) vessel, scraped bottom and released 
about 1,000 tons (T) of crude oil. A similar incident occurred to Idemitsu Maru 
in 1968, and in 1971 two tankers over 200,000 dwt, Arabian and Eugenie Niarchos, 
ran aground. Several more serious or well-known accidents, such as that otShowa 
Maru (1975), happened only later, when coastal State efforts were already focused 
on controlling oil tanker traffic. 

A combination of factors account for the maritime hazards of the Straits. 
Traffic in the Straits is dense and is composed of vessels of various classes, speeds, 
and destinations. This causes considerable crossing and overtaking in the main 
shipping lanes. The shipping lanes themselves become very narrow, especially at 
critically crowded points and in areas in which surrounding depths constrain the 
maneuvering of larger vessels. In the past, charts were deficient and aids to 
navigation insufficient or incompletely maintained; even contemporary charts 
cannot account fully for changing bottom conditions resulting from sand waves, 
however. The Straits are also subject to significant tides and currents, and rain 
squalls often reduce visibility. 

About a fifth of all the oil shipped across national borders in the world is moved 
by tanker through Southeast Asia. It has been calculated that in order to supply 
Japanese needs alone, 1,627 tanker trips with a mean capacity of 150,000 dwt 
would be required, or over 3,200 trips both ways. Assuming this capacity were 



122 Readings on International Law 

to move through the Straits of Malacca, approximately five very large crude 
carriers (VLCCs — tank vessels in excess of 175,000 dwt) would transit the Straits 
loaded each day and five such vessels would return through the Straits in ballast. 
But tankers, including the larger tankers, are not even the major component of 
shipping in the Straits. A traffic survey, based on visual sightings and radio contact, 
was conducted by the Port of Singapore Authority in 1976; the study reported 
about 150 vessels passing per day, of which 90 were general cargo vessels and 40 
were tankers. Even if it is assumed that this number of vessels were distributed 
evenly and traveling in equal numbers in both main directions, vessels would 
pass each other while traveling in opposite directions approximately every 9 
minutes. But this simplifying assumption does not, of course, account for 
crisscrossing, random grouping, overtaking, and other factors. 

Bottom conditions also create safety problems, especially for large vessels. 
While the Straits themselves narrow to a width of 3.2 nautical miles (n. mi.) off" 
Singapore, the deep channels are considerably narrower, as little as 1,000 meters 
(m) in parts of the Singapore Strait and only 600m near the One Fathom Bank 
near the western entrance to the Straits of Malacca. In addition to their 
narrowness, the deepwater areas are discontinuous and irregular and require large 
vessels to maneuver to stay in deep water. In several places, vessels have to 
maneuver through areas of less than 23m average depth in order to traverse 
shallow spots between deeper channels. These maneuvers would be difficult for 
large tankers even if crowded traffic conditions did not constrain their move- 
ments or occasionally even compel them to take evasive action. 

The navigational problems of the Straits have led to numerous vessel casualties, 
especially involving tankers. Although strandings of tankers declined during 
the 1970s as a result of improvements to aids to navigation, there was a high 
rate of collisions involving tankers. In 1974, while only one reported tanker 
stranding took place in the Straits out of about 100 worldwide, fully 10 out of a 
world total of 77 collisions occurred there; in 1975 two of 77 strandings occurred 
in the Straits, but nine out of 51 collisions. Serious or potentially serious casualties 
occurred throughout the 1970s. Showa Maru, a 237,000-dwt vessel, stranded in 
1975 and released about 1,000T of oil, and several other vessels in the same class 
grounded and spilled oil. Several collisions also occurred; for example, Diego 
Silang collided with two other vessels (one a tanker) and spilled 6,000T of oil. 
There were several total losses: Oswego Merchant, carrying jet fuel, burned and 
sank after a collision with another tanker; Tosa Maru, which was in ballast, 
collided with another tanker and broke up, caught fire, and sank. 

Regardless of the undeniable safety problems of commercial traffic in the 
Straits, the coastal states found it difficult to arrive at a unified position on 
regulation of navigation. This is evident from the language of their joint 
declaration, in which the Singapore authorities would not go as far as Indonesia 
and Malaysia in asserting regional authority over traffic in the Straits. It is thought 



Finn 123 

that Indonesia had several motivations in moving for regional control of maritime 

1 R 
activities in the Straits. Indonesia, because of its colonial legacy and history of 

internal and external threats to its national cohesion, has been especially sensitive 
to the operations of vessels in waters within and adjacent to the Indonesian 
archipelago. Indeed, Indonesia has asserted, since 1957, its territorial jurisdic- 
tion of the waters within the archipelago; Indonesia's claim, along with similar 
claims by the Philippines and Fiji, have been important at UNCLOS III as the 
Conference has moved to define the rights and obligations of such archipelagic 
states with respect to foreign vessels. (Indonesia was the first to act on the issue 
of tanker safety in the Straits, declaring in 1972, with Malaysian "agreement in 
principle," that it would ban passage by vessels over 200,000-dwt capacity.) 22 It 
is also thought, however, that Indonesia, in moving aggressively on the issue of 
traffic in the Straits of Malacca, may have sought to divert some traffic from the 
Straits through Indonesia where such traffic could potentially provide some 
benefit to its national ports and refineries and perhaps become subject to some 
form of regulation in the sealanes and the straits within the Indonesian archipelago 
that had traditionally been used for international navigation. Malaysia, while 
thought to be somewhat differently motivated, could reach a similar position on 
the issue of vessel traffic in the Straits of Malacca; local control of traffic in the 
Straits could help alleviate coastal environmental problems, especially harmful to 
its small-scale fisheries, and also help to neutralize the region from the influence 
of major outside powers. But Singapore, while it could hardly deny the 
significance of the environmental and safety problems caused by tanker traffic, 
was concerned lest assertion of coastal state authority by Indonesia and Malaysia 
affect its access to world trade and the benefits of tanker operations, including 
drydocking and other port services provided there. 

It is in examining these motivations that the relationship between the 
environmental and safety concerns and security considerations becomes apparent. 
Indonesia's assertive posture may be attributed to its traditional concerns with 
domestic autonomy over developments in and around the archipelago; in the 
postcolonial period the Republic of Indonesia had moved aggressively to 
consolidate its internal situation and assert its claim to leadership in the politics 
in the region based on its large population and natural resource base. Malaysia 
had sought in the same period to insulate itself from outside forces and prevent 
the region from becoming a focus of great power confrontation after the 
withdrawal of British forces, as well as to shield itself from the early regional 
aspirations of Indonesia. Malaysia's extraregional concerns have included 
support by the People's Republic of China for indigenous Communist move- 
ments and the possibility of countervailing U.S. and Soviet buildings in the area, 
which aside from its intrinsic importance in terms of geographical location, 
population, and natural resources, also provided an essential link between the 
Pacific and Indian Ocean theaters of military operations. The Singapore 



124 Readings on International Law 

Government, on the other hand, tended to welcome outside participation in the 
region's economy and friendly links with the West. Such connections could 
help protect it from insurgency and military deployments by Communist forces 
and shield it against pressures for regional influence exerted by its neighbors. 
These complex security factors caused concern to the United States and the 
Soviet Union, which both undertook various diplomatic initiatives and naval 
activities in response to them. In the month after the joint declaration was issued, 
both the United States and the Soviet Union undertook naval operations in the 
Straits. And while the United States apparently did not respond in a formal 
manner to the joint declaration, the Soviet Union the following year received 
the Malaysian Prime Minister in Moscow, made contacts in Tokyo with the 
Japanese Government, and sent a diplomatic mission to Jakarta. 

Japanese actions were perhaps most influential in motivating the coastal States 
to declare regional autonomy over navigation through the Straits. In 1968 
private interests in Japan formed the Malacca Straits Council as a nongovernmen- 
tal organization affiliated with the Japanese Keidanren (Federation of Economic 
Association). Atop the natural regional reaction to such a title being assumed by 
Japanese interests, the Japanese press began playing up the idea of the Straits as 
Japan's "lifeline"; concepts ofjapanese naval defense of the Straits even appeared. 
A Japanese delegation visited the region in 1970, acting, it was alleged, as if it 
were an "equal partner" in managing the navigational situation in the Straits; 
hydrographic surveys have been sponsored by Japanese organizations since 1969, 
although they have been occasionally impeded by local reaction to such Japanese 
initiatives. These disturbing activities were capped off in July 1971 with a formal 
proposal by the Japanese representatives to the Intergovernmental Maritime 
Consultative Organization (IMCO) that a traffic separation scheme (TSS) be 
established in the Straits under IMCO auspices. 

Development of a Regulatory Regime for Oil Tankers Transiting the Straits of 
Malacca. After issuance of the joint declaration, political difficulties both within 
and outside the region impeded further cooperative action, although various 
informal actions were taken by the coastal States, outside powers, and industry. 
Several radical proposals surfaced — one by Indonesia to ban vessels in excess of 
200,000 dwt and another by the head of Malaysia's state oil company to impose 
user fees on passing vessels. A strict prohibition based on vessel size would have 
had serious effects on the economics of oil transportation between the Middle 
and Far East; vessels over 200,000 dwt, of which there were a substantial number, 
would be forced to proceed through the Straits of Lombok and Makassar in the 
Indonesia archipelago as an alternative to the Malacca route. The Lombok route 
would involve over a thousand nautical miles — 3 days — extra travel. Thus 
transport by the larger VLCCs would have tended to become uneconomical at 
the same time that there was significant capacity in this range, and the imminent 



Finn 125 

downturn in the rate of growth of oil consumption after 1973 soon made 
continued construction of larger vessels (ultralarge crude carriers, ULCCs — ves- 
sels in excess of 350,000 dwt) unlikely. The extension of the tanker route for the 

"IE 

largest VLCCs would also have required additional transportation capacity. 

The Showa Maru accident in January 1975 led to a renewed call for action in 
the region and in February the Prime Ministers of the coastal States held talks on 
the tanker issue while at a meeting of the Association of Southeast Asian Nations 
(ASEAN). The Prime Ministers agreed upon the concept of "underkeel 
clearance" (UKC) as a basis for regulation for tankers, called for development of 
a TSS for the Straits, and initiated technical consultations on these and related 
issues. Technical and other difficulties again slowed the results of consultation in 
the following years, which were punctured by the collision of Diego Silang. At a 
second conference of their Prime Ministers in February 1977, again at an ASEAN 
meeting, the three governments finally agreed to a regulatory regime based on 
a required UKC of 3.5m throughout passage; establishment of special deep-water 
routes (DWR.) for vessels of 15m draught, in which no overtaking by them would 
be allowed; adoption of TSS (separated traffic lanes in each main direction) in 
three critical areas — at the One Fathom Bank, the Singapore Main Strait, and 
the Phillip Channel (in the eastern part of the Singapore Strait, where the Straits 
open out into the South China Sea); and operational recommendations, includ- 
ing maximum vessel speed in critical areas (12 knots). 

The coastal States' adoption of UKC as the basis for limiting the passage of 
larger vessels marked a significant turning point in mediating the divergent 
interests among the coastal States themselves and between the region and outside 
users. A capacity limitation, such as that earlier advocated by Indonesia, would 
have rigidly excluded certain vessels regardless of their operating characteristics; 
furthermore it could have been enforced relatively easily as vessel capacity is fairly 
well known through shipping registers and the like. UKC is neither as clear in 
concept nor as straightforward in application. First, there is disagreement over 
the very meaning of the term UKC, i.e., whether UKC should be calculated so 
as to make allowance for various errors and safety considerations and for vessel 
"squat" — the tendency of a large vessel's draught to increase with speed. Second, 
actual UKC is responsive to vessel design, load, trim, speed, and tidal fluctua- 
tions — none of which are easily observable during passage or readily determinable 
from published sources. 

Aside from some technical concern about the proposed vessel routes (that 
were submitted to the coastal States for further development ), the regional 
proposal was well received by IMCO and in November 1977 IMCO's Assembly 
formally approved the TSSs and other rules for passage in the Straits. The action 
of the coastal States will have significant positive effects on the safety of navigation 
through the Straits by establishing well-defined and universal vessel routes, 
including special DWRs, and recommending operational practices that will help 



126 Readings on International Law 

vessel masters ensure a safer voyage. It is unlikely for several reasons, nevertheless, 
that the vessel lanes and operational rules will completely resolve the safety and 
environmental concerns associated with large-scale use of the Straits for oil 
transshipment. First, the Straits are narrow and crowded and larger vessels are 
constrained in their maneuvering by depth limitations, occasionally poor 
visibility and the reduction of their speed for overall safety and also, for the largest 
vessels allowed to operate in the Straits, to reduce their squat. Second, although 
adoption of navigational rules by IMCO accords them definite international 
recognition, they remain voluntary in many respects; in the case of the 
operational rules approved by IMCO to supplement the TSSs and DWR, in 
addition, there is considerable nonauthoritative language, e.g., the use of such 
phrases as "as far as practicable" (avoidance of the DWRs by non-deep draught 
vessels); "as possible" (maintenance of steady course within the TSSs); and 
"advised to" (use of the DWRs, maximum 12-knot speed, participation in a 
voluntary ships' reporting system). 

The "accommodation" among regional and external interests that is repre- 
sented by the IMCO-approved rules for tankers and other vessels in the Straits 
at once illustrates the difficulty of arriving at significant substantive regulation on 
an international level and the role of international law in resolving such 
differences. The IMCO rules address only one aspect of the safety and environ- 
mental problems associated with transit oil tanker traffic in the Straits — vessel 
routes and operating practices. They do not provide in any way for operational 
restrictions (such as no-discharge zones) or safety standards in excess of universal 
standards, that would be desirable in such a constrained and heavily used 
waterway. They do not establish any special provisions on vessel liability or 
requirements for contingency capability or the establishment of funds to defray 
or compensate the costs to the coastal States of having such heavy traffic in their 
waters. To a certain extent, these issues can be resolved through informal and 
voluntary arrangements between the coastal States and outside users — both other 
governments and private interests. The Japanese, for example, largely operating 
within the framework of private associations, the Malacca Straits Council in 
particular, have made significant contributions to hydrographic surveying and 
construction of aids to navigation. The accommodation also, as has been noted, 
makes enforcement difficult and it does not necessarily provide a sound basis for 
further regulation. Specifically, reporting of vessel passage — including informa- 
tion on characteristics, speed, and time of passage prior to entry into the 
Straits — remains voluntary. Further regulation of vessel traffic, such as estab- 
lishment of a vessel traffic system (VTS) with comprehensive command and 
control capacity, would require such information as well as an extensive shoreside 
communication and administrative capability. Aside from questions about the 
practicality of VTS in such heavily and diversely trafficked and strategic waters, 
the necessary reporting of the movements and characteristics of vessels would 



Finn 127 

also inform the coastal States of the full extent of maritime operations and possibly 
inflame local feelings, especially if further accidents or military tensions occur. 

Regardless of these substantive shortcomings, the process by which the IMCO 
rules were adopted illustrates the successful working of international law in such 
a situation. After announcing that they would proceed on a regional basis, and 
even threatening to seek a change in the international juridical status of the Straits, 
the coastal States proceeded to develop a broadly acceptable regulatory regime 
on a regional basis and to refer it to IMCO for international approval prior to its 
implementation. IMCO's adoption of the regime accords it significant interna- 
tional recognition and, for navigational practices affecting the TSSs, international 
enforceability through general international agreements on navigation. Such a 
procedure, by which States may forward proposed systems of traffic regulation 
to IMCO for approval, will probably be adopted formally if UNCLOS III 
concludes successfully and a new treaty on the law of the sea is adopted. Under 
the Draft Convention on the Law of the Sea ("Draft LOS Convention") under 
consideration at UNCLOS III: 45 

States bordering straits may designate sea lanes and prescribe traffic separation 
schemes for navigation in straits where necessary to promote the safe passage of 
ships. 

Before designating ... sea lanes or prescribing . . . traffic separation schemes, 
States bordering straits will refer proposals to the competent international organiza- 
tion with a view to their adoption. The organization may adopt only such sea lanes 
and traffic separation schemes as may be agreed with the States bordering the straits, 
after which the States may designate . . . them. 

It would appear that the coordinated actions of the Government of Indonesia, 
Malaysia and Singapore taken after their joint declaration of 1971, have not only 
followed international law as it existed prior to UNCLOS III, but have by their 
example exercised considerable influence on the progressive development of 
international law in this field, specifically the above article of the Draft LOS 
Convention under consideration by UNCLOS III. The procedure codified by 
UNCLOS III, for traffic regulation as well as other matters affecting international 
straits and other critical or sensitive water bodies, may help to regularize the 
process by which these and other coastal states may seek international recognition 
of the special needs of such waters. But referral to international organizations 
of such questions, or their reference to separate agreements among the parties 
concerned, may not always provide a substantively satisfactory answer and also 
may lead to procedural frustration when international support for such measures 
is not forthcoming, for commercial or strategic reasons. Nevertheless, the 
establishment of a procedural framework through which such disagreements can 
be resolved could help to make these conflicts more manageable. 



128 Readings on International Law 

The recent development of navigational rules for the Straits of Malacca 
illustrates the resolution of conflicting interests about the use of international 
straits through international consultations. The procedures followed by the 
coastal States in this case could be applied elsewhere and would be codified in 
the Draft LOS Convention under consideration at UNCLOS III. Such interna- 
tional procedures, whether conducted on the basis of traditional law of the sea 
or specifically authorized in a general LOS convention, will not, however, likely 
prove fully satisfactory to coastal States in achieving effective substantive regula- 
tion. Extensive local regulation of maritime activities in international straits 
would necessarily interfere with important interests of outside users in commer- 
cial transportation and naval operations. The Malacca Straits case also illustrates, 
however, the importance of local environmental and security concerns to coastal 
States and their potential effect on outside users. Continued progress should be 
made on such regional issues to prevent further conflict between coastal States 
and major users and to achieve maximum maritime security in such areas. 



Daniel Finn was a research fellow in the Marine Policy Program of the Woods Hole 
Oceanographic Institution at the time this article was first published. 



Notes 

1. LEIFER, MALACCA, SINGAPORE, AND INDONESIA 6-31 (1978). 

2. FINN, OIL POLLUTION FROM TANKERS IN THE STRAITS OF MALACCA: A POLICY AND LEGAL 
ANALYSIS 5-11 (East West Center, 1979). 

3. Supra n. 1 at 105-127. 

4. Convention on the Territorial Sea and the Contiguous Zone, done 29 April 1958, entered into force 
10 September 1964, 15 U.S.T. 1606, T.I.A.S. 5639. 

5. The results of UNCLOS III to date may be found in its Draft Convention on the Law of the Sea 
(Informal Text) (hereinafter "Draft LOS Convention"), U.N. Doc. A/CONF.62/WP.10/Rev. 3, 27 August 
1980. 

6. Id., Arts. 34-45. Richardson, Power, Mobility and the Law of the Sea, Foreign Affairs 902 (Spring 1980) 
(emphasizing significance of the results of UNCLOS III for naval and other maritime activities). 

7. The full text of the joint declaration is reprinted in LEIFER, supra at 204; the operative paragraphs are 
also quoted in FINN, supra at 76-77. 

8. Convention on the Territorial Sea and the Contiguous Zone, Arts. 14-17. 

9. The evolution of tanker size and resulting operational characteristics relevant to Southeast Asian waters 
are discussed in length in FINN, supra at 124-128. A detailed summary of tanker casualties and loss trends in 
the region is given in supra n. 2 at 1 1-18. 

10. Geographical data on the marine environment in the Straits area, and detailed information on bottom 
conditions, is given in supra n. 2 at 20-30. 

11. Id. at 5. 

12. Id. at 5, 6. 

13. Id. at 11. 

14. The hydrographic characteristics of the Straits are discussed in id. at 20-30. 

15. Casualty data and trends are presented in id., at 11, 18. 

16. Id. at 77, 84. 

17. Supra n. 1 at 25-50; supra n. 2 at 76-99. 

18. Supra n. 1 at 105-107; supra n. 2 at 77. 

19. Supra n. 1 at 14-27. 

20. Indonesia's 1957 Cabinet declaration, and Act No. 4 of 1960, to this effect, are reprinted in supra n. 
1 at 201-203. 



Finn 129 

21. Supra n. 1 at 100-105; Draft LOS Convention, Arts. 46-54 (regime of archipelagoes). 

22. Supra n. 1 at 78; supra n. 2 at 66. 

23. Supra n. 1 at 105-107; supra n. 2 at 77. 

24. Supra n. 1 at 27-31; supra n. 2 at 77. 

25. Sm/>w n. 1 at 119-120; supra n. 2 at 77. 

26. Supra n. 1 at 14-27. 

27. Id. at 10-31. 

28. Id. 

29. W. at 106-107; supra n. 2 at 77. 

30. Supra n. 1 at 114. 

31. W. at 107-121. 

32. For narratives of the relationship between Japanese actions and the development of a regional response 
to navigational problems, see generrally FINN, at 78-80; Leifer, at 42-45. 

33. For discussions of the period between 1971 and 1975, see FINN, at 77-78; LEIFER, at 113-121. 

34. The imposition of user fees based on passage through a territorial sea is prohibited by Art. 18 of the 
Geneva Convention on the Territorial Sea and the Contiguous Zone, which reads: 

1. No charge may be levied upon foreign ships by reason only of their passage through the territorial 
sea. 

2. Charges may be levied upon a foreign ship passing through the territorial sea as payment only for 
specific services rendered to the ship. These charges shall be levied without discrimination. 

35. The comparative economies of the Malacca and Lombok routes are extensively analyzed in FINN, et 
al., pp. 124-129. 

36. Post-Showa developments are described in id. at 78-79; LEIFER, at 66-76, 132-148. 

37. Supra n. 2 at 81-83. 

38. LEIFER, at 75. The regional proposal to the Maritime Safety Committee of IMCO had also confined 
a clause, "All tankers and large vessels navigating through the Straits shall be adequately covered by insurance 
and compensation schemes." This was bracketed by the Committee, and deleted by the Assembly, on grounds 
of lack of jurisdiction. Supra n. 2 at 86. 

39. The Assembly's resolution of 14 November 1977 is reprinted in supra n. 2 at 206-208; the operative 
terms of the resolution are included in Intergovernmental Maritime Consultative Organization, (SHIP'S 
ROUTING at B-V/l-5 (4th ed. 1978). 

40. IMCO-approved TSSs are per se voluntary; certain aspects of IMCO-adopted regulations may become 
mandatory by virtue of other authority, however, specifically the International Regulations for Preventing 
Collisions at Sea, 1972 (COLREGS 72), entered into force 15 July 1977, reprinted in U.S. Coast Guard, Navigation 
Rules (Washington: 1 May 1977), No. CG-169. Rule 10 of COLREGS 72 requires vessels in the vicinity of 
a TSS to conform their operations to the traffic lanes; it does not speak directly to compliance with such 
suplemental rules as have been adopted for the Strait of Malacca. 

41. Supra n. 1 at 147-148. 

42. The Showa Maur accident, for example, led to claims of $3.6 million by Sigapore, of which $1.5 million 
in cleanup costs were paid, leaving about $2 million in private claims outstanding. Indonesia claimed $24.7 
million and received $1.2 million; Malaysia claimed $9 million and received $0.5 million. FINN, at 114. 

43. Supra n. 2 at 77, 84. 

44. Supra n. 40. 

45. Draft LOS Convention, Art. 41; Art. 42(l)(a) (general right of coastal States to regulate safety of 
navigation and marine traffic in international straits, subject to Art. 41). 

46. Compare supra n. 1 at 127-148 (effect of views of the three coastal States on the regime of straits used 
for international navigation under consideration at UNCLOS III). 

47. The ability of coastal States to seek international recognition of the special needs of such marine areas 
is not limited to the regulation of maritime traffic but would also include other antipollution measures, under 
Art. 21 1(6) of the Draft LOS Convention. But in many respects such a provision wouki only codify practices 
which are already available under other international conventions, for example, the Internaitonal Convention 
on the Pollution of the Sea by Oil and Other Substances (MARPOL). Art. Ill of the 1962 amendments to 
MARPOL, done 11 April 1962, entered into force 28 June 1967, 17 U.S.T. 1522, TIAS 6109, 600 U.N.T.S. 
322, provides for the designation of "no-discharge" zones in addition to those otherwise provided for in the 
Convention (waters within 50 n. mi., of shore generally and the vicinity of the Great Barrier Reef), by 
amendment to Annex A of the Convention. 211 (6) of the Draft LOS Convention, which would generalize 
such procedures, reads: 

Where international rules and standards ... are inadequate to meet special circumstances and where 
coastal States have grounds for believing that a particular, clearly defined area of their respective exclusive 
economic zones is an area where, for recognized technical reasons in relation to its oceanographical 
and ecological conditions, as well as its utilization or the protection of its resources, and the particular 



130 Readings on International Law 

character of its traffic, the adoption of special mandatory measures for the prevention of pollution from 

vessels is required, coastal States, after appropriate consultations through the competent international 

organization with any other States concerned, may for that area, direct a communication to the 

competent international organization, submitting scientific and technical evidence in support. ... If 

the organization [agrees], the coastal State may, for that area, adopt laws and regulations for the 

prevention, reduction and control of pollution from vessels, implementing such international rules and 

standards or navigational practices as are made applicable through the competent international 

organization for special areas. Such additional laws and regulations may relate to dishcarges or 

navigational practices but shall not require foreign vessels to observe design, construction, manning or 

equipment standards other than generally accepted international rules and standards. . . . 

48. The Draft LOS Convention would simply refer the provision of navigational aids and other general 

safety and environmental issues connected with the use of straits for international navigation to cooperative 

agreements among Coastal and user States. To date, this is how hydrographic surveys, navigational aids, and 

compensation of pollution costs have been handled in the case of the Malacca Strait and other areas. Supra n. 

2 at 114, 77, 84. Art. 43 of the Draft Convention provides: 

User States and States bordering a strait should by agreement cooperate: 

(a) In the establishment and maintenance in a strait of necessary navigation and safety aids or other 
improvements in aid of international navigation; and 

(b) For the prevention, reduction and control of pollution from ships. 



Chapter 1 

The Cordon Sanitaire — Is It Useful? 
Is It Practical?* 

Lieutenant Commander Stanley F. Gilchrist, U.S. Navy 



That Soviet naval units shadow U.S. aircraft carrier battle groups is common 
knowledge, but no less dangerous for that. Those tattletales provide the 
Soviet Navy with continuous, accurate information on the position of our 
carriers — the repositories of most of the conventional striking power of the U.S. 
Navy. The tremendous concentration of power in only twelve carriers makes 
them extremely lucrative targets in wartime. 

Soviet leaders have clearly recognized the advantage to be gained by placing 
the carriers out of action in the first minutes of hostilities before carrier air power 
could be brought to bear on the ships of the Soviet Navy and targets ashore. 
Soviet surface combatants, submarines, and aircraft carry extremely capable 
antiship missiles, and the Soviet Navy frequently conducts anticarrier exercises 
during which the forces practice coordinated attacks. A coordinated preemptive 
strike with antiship cruise missiles using precise targeting data provided by a 
tattletale could overwhelm a battle group's air defenses and destroy or cripple 
the carrier's striking power before it could be used. 

The presence of a Soviet ship or perhaps several ships in company with a U.S. 
carrier battle group has become accepted as routine during normal peacetime 
operations, but such shadowing in a crisis situation on the "edge of war" would 
be an intolerable risk. Clearly, in crisis the United States needs some means of 
denying the Soviets this tattletale capability without precipitating hostilities. 
Although right now serious political and legal problems would inhibit its use, 
the concept of the cordon sanitaire offers great promise as a means to solve this 
dangerous problem. 

As early as the 17th century, the French term, cordon sanitaire (sanitary zone), 
was used to describe the establishment of a perimeter around an area infected 
with contagious disease to effect a quarantine. Gradually its usage spread to 
connote military perimeters enclosing safe areas. Later, the system of alliances 
instituted by France in post-World War I Europe that stretched from Finland to 
the Balkans was also referred to as a cordon sanitaire. It completely ringed 

* Reprinted from the Naval War College Review May-June 1982. 



132 Readings on International Law 

Germany and sealed off Russia from Western Europe, thereby isolating the two 
politically "diseased" nations of Europe. 

The use of the term cordon sanitaire in a strictly maritime context originated 
in the late 1960s with Vice Adm. Isaac C. Kidd, Commander U.S. Sixth Fleet, 
as he attempted to devise a means of eliminating the Soviet tattletale problem in 
the Mediterranean. The term has gained acceptance but relatively little has been 
written on the subject. Maritime cordon sanitaire may be described in general 
terms, as follows: an area relative to U.S. Naval Forces, defined by either 
geographic boundaries or a circle centered on the formation in which the 
presence of units of a potential enemy would be considered a hostile act, making 
such units subject to military action. 

One must first recognize that the decision to implement a cordon sanitaire 
would be made only by the President and National Security Council. There are 
many political and legal implications and risks associated with such action which 
would preclude any lower authority from declaring a cordon sanitaire. Secondly, 
it is clear that the use of cordon sanitaire would be limited to highly tense 
situations barely short of war, when the threat posed by tattletales would become 
intolerable. Once hostilities had opened, cordon sanitaire would have little, if 
any, usefulness. Thirdly, a cordon sanitaire must be applied to all the potential 
enemy's surface, air, and submarine units in order to be effective. Since any ship 
or aircraft belonging to the foe can gather and transmit information, all Soviet 
ships and aircraft of whatever description, civil as well as military, would have to 
be subject to the cordon sanitaire restrictions. Fourthly, a U.S. cordon sanitaire 
would be selective. That is, neutral and allied units, both military and civil, could 
be permitted within the cordon sanitaire. Only Soviet and Warsaw Pact units, 
together with those of any other nation or nations deemed to pose a threat, would 
be excluded from the area. 

Even though the use of cordon sanitaire can be contemplated for the 
protection of any group of ships, such as a convoy or an amphibious task group, 
the term "battle group" will serve our purpose here. Likewise, the term "Soviet" 
will be used to cover the units of any country associated with the Soviet Union. 

There are no historical examples of the use of a maritime cordon sanitaire, 
but the concept has been used in war games. The results have been mixed. In 
Admiral Kidd's experience, war games in which Blue used a cordon sanitaire 
generally ended more favorably for Blue than those in which it was not 
attempted. Another veteran of many war games, Capt. S.D. Landersman of the 
Naval War College's Strategic Studies Group, says that cordon sanitaire had no 
discernible effect on the outcome of the war games he has observed; if anything 
the imposition of a cordon sanitaire seemed to precipitate rather than delay 
hostilities. 

However, war game experience concerning cordon sanitaire is useful only up 
to a point since, in the minds of those playing the national command authorities, 



Gilchrist 133 

the political and legal aspects of managing the "edge of war" crisis inevitably are 
subordinate to military factors. Since the primary purpose of war games is to test 
strategy and tactics in war, there is an artificial feeling of the inevitability of (or 
even impatience for) the commencement of hostilities that in real life would not 
be present. Further, the reactions to a cordon sanitaire declaration by those 
playing the parts of major Soviet officials undoubtedly would not precisely match 
those of their real life counterparts. 

Determining the Cordon Sanitaire Size 

Many factors affect the size of the area around a battle group that should be 
included in a cordon sanitaire. Probably the most obvious of these are the ranges 



Ranges 


of Major Soviet Antiship 


> Cruise Missiles 








Range 


Platforms 


AIR-TO-SURFACE MISSILES 






AS-2 


KIPPER 


About lOOnm 


BADGER C/G 


AS-3 


KANGAROO 


200-300 nm 


BEAR B/C 


AS-4 


KITCHEN 


150-250 nm 


BLINDER B, BACKFIRE 


AS-5 


KELT 


About 100 nm 


BADGER 


AS-6 


KINGFISH 


15O-250nm 


BADGER C/G 



SUBMARINE LAUNCHED 
ANTI-SHIP MISSILES 

SS-N-3c SHADDOCK 

SS-N-7 

SS-N-9 SIREN 

SS-N-12 

SURFACE-TO-SURFACE 
MISSILES 

SS-N-1 SCRUBBER 

SS-N-2 STYX 

SS-N-2 STYX (Improved) 



SS-N-3b SEPAL 
SS-N-9 SIREN 
SS-N-12 



About 250 nm 

About 30 nm 
About 60 nm 
About 300 nm 



About 100 nm 
About 25 nm 
About 40 nm 



About 250 nm 
About 60 nm 
About 300 nm 



ECHO I/II, JULIETT, WHISKEY 

CONVERSION 
CHARLIE I 
CHARLIE II, PAPA 
ECHO II 



KILDIN KRUPNYY 

OSA I, KOMAR, NANUCHKA II 

OSA II, MOD KASHIN, MOD 

KILDIN, MATKA, 

TARANTUL 
KRESTA I, KYNDA 
NANUCHKA, SARANCHA 
KIEV 



Source: Office of the Chief of Naval Operations, Understanding Soviet Naval Developments 
(Washington: U.S. Govt. Print. Off., 1981), pp. 131-132. 



134 Readings on International Law 

of Soviet antiship cruise missiles. Ideally, a cordon sanitaire would be large 
enough to keep all Soviet units outside their maximum effective missile ranges. 
From the missile ranges shown in the table, it is apparent that a cordon sanitaire 
with a radius of about 300 nautical miles against aircraft, surface ships, and 
submarines would be necessary to provide full protection from the longest range 
Soviet antiship missiles. 

So large an area would be impractical for at least two reasons. First, a battle 
group's surveillance resources would almost certainly be inadequate to patrol 
such a huge area against intruders, particularly submarines and surface ships. If 
the battle group were operating near heavily traveled sea lanes and air routes, the 
need to investigate large numbers of innocent air and surface units would reduce 
even further the effective surveillance area. These and other factors, such as 
weather and hydrographic conditions, which affect the ability of the battle group 
to detect intruders, must weigh heavily in the planning of the size of a cordon 
sanitaire. Second, an extremely large cordon sanitaire would be harder for the 
Soviet Union to accept than a smaller area, and the reactions of Third World 
nations would likely be more favorable with a smaller cordon sanitaire. The need 
for political acceptability, then, requires that the cordon sanitaire be no larger 
than militarily necessary. 

Since targeting information from external sources is generally required for 
cruise missiles more than 30 to 50 miles from the potential targets, a cordon 
sanitaire could still be effective with air, surface, and subsurface radii considerably 
less than 300 miles. By keeping targeting platforms (such as surface tattletales, 
Bear D aircraft, or submarines) outside of their effective targeting ranges, a cordon 
sanitaire could make the longer range Soviet antiship missiles largely ineffective. 
Thus the main objective of a cordon sanitaire would be to deny the Soviets 
accurate targeting data with which to launch a coordinated attack on the battle 
group. 

Based on the factors discussed here, the radii of a cordon sanitaire (in the 
absence of other external constraints) should measure about 100 nm from the 
center of the U.S. formation against surface and submarine units and about 200 
nm against aircraft. These distances provide a margin of safety in which to 
intercept and turn away intruders before they could obtain accurate targeting 
information. And, depending on the exact composition of the battle group, these 
distances form the approximate maximum area that could be patrolled effectively. 
While some Soviet missile platforms could be within striking range even though 
outside a cordon sanitaire of this size, without the external targeting information 
which the cordon sanitaire would deny, they would be ineffective. 



Gilchrist 135 
Cordon Sanitaire and International Law 

Arguments Against Cordon Sanitaire: Freedom of the high seas is the 
overriding principle oflaw arguing against the legality of cordon sanitaire. Article 
II of the 1958 Geneva Convention on the High Seas, to which the United States 
is a party, states in part: 

The high seas being open to all nations, no State may validly purport to subject 
any part of them to its sovereignty. Freedom of the high seas . . . comprises, inter 
alia, both for coastal and non-coastal states: 

(1) Freedom of navigation [surface and subsurface]. . . . 

(4) Freedom to fly over the high seas. 
These freedoms, and others which are recognized by the general principles of 
international law, shall be exercised by all States with reasonable regard to the 
interest of other States in their exercise of the freedom of the high seas. 

The establishment of a cordon sanitaire on the high seas would clearly interfere 
with the Soviet Union's freedoms of navigation and overflight. As such, a Soviet 
protest to such actions would be on solid legal grounds, and most of the 
international community would likely agree with the Soviet position. 

A further legal complication regarding cordon sanitaire pertains to its enfor- 
cement once it is declared. If the Soviet Union refused to evacuate the declared 
zone, virtually any measure used by the United States to force compliance would 
violate the bilateral U.S.-Soviet Agreement for the Prevention of Incidents On 
and Over the High Seas, signed in 1972. This agreement specifically prohibits 
such aggressive actions as shouldering, illumination, buzzing by aircraft, training 
of weapons, etc. Thus, a U.S. effort to enforce a cordon sanitaire through any 
of the above methods, or even more drastic action would probably entail a 
violation of the bilateral agreement. 

Arguments For: Customary international law recognizes a nation's rights of 
self-defense in the face of an imminent threat to its security. Within the 
constraints of the dual requirements of necessity and proportionality in relation 
to the severity of the threat, a State may take action to preserve its security. It 
could be argued that the threat to the security of the United States (that is, the 
possible loss of a carrier battle group) embodied by the presence of a Soviet 
tattletale or group of combatants would justify the imposition of a cordon 
sanitaire and the use of force, if necessary, to enforce it. Indeed, a cordon sanitaire 
would satisfy the test of proportionality much better than an attack without 
warning to forcibly remove a tattletale. 

The United States has used the principle of self-defense on several occasions 
to exert limited jurisdiction over areas of the high seas. Before direct U.S. 
involvement in World War II, President Roosevelt established "Maritime 
Control Areas" outside U.S. territorial waters. Since that time several "defensive 



136 Readings on International Law 

sea areas" have been established, usually during crises, in which the United States 
has exercised limited jurisdiction over foreign vessels. Probably the most famous 
defensive measure taken by the United States in peacetime on the high seas was 
the quarantine imposed under the auspices of the Organization of American 
States during the Cuban Missile Crisis in 1962. While the quarantine would have 
been condemned by a strict interpretation of the Geneva Convention, the clear 
defensive need for such action justified the O.A.S. action in the eyes of most 
nations of the world. 

Another useful precedent is the fairly routine establishment of warning areas 
by many navies to conduct naval exercises, missile or gun firings, or potentially 
dangerous experiments at sea. Notices to Mariners are promulgated which specify 
the area and duration of the dangerous activity. This peacetime abrogation of the 
normal freedom of the sea is accepted as the reasonable exercise of high seas 
freedoms, since such areas usually are severely limited in time and space. It should 
be noted, though, that while all ships are warned of the danger area, they are not 
prohibited from entering at their own risk. 

Summary of Legal Consideration. There is little doubt that if a cordon sanitaire 
were declared today, without prior diplomatic and legal groundwork being laid, 
the vast majority of the world community would condemn the action as a clear 
violation of the freedom of the seas. However, the principle of self-defense and 
the precedents established by sea control zones, the Cuban quarantine, and the 
accepted practice of declaring warning areas, indicate that cordon sanitaire could 
be viewed as a reasonable and proportionate response to an imminent threat. 
Negotiations in international forums would be required, however, to ensure the 
acceptance of such a view in the world community. 

Potential Benefits of Cordon Sanitaire 

Removal ofTattletales. If the cordon were accepted and observed by the Soviets, 
they would remove their targeting and antiship missile platforms from the 
immediate vicinity of the carrier battle group. Although satellites, HF/DF nets, 
and other elements of the Soviet Ocean Surveillance System could presumably 
still track the battle group to some extent, the removal of the tattletale would 
decrease the accuracy of the targeting information available to the Soviets. Also, 
the removal of the combatants would provide a buffer area in which to intercept 
incoming missiles. Thus, with a cordon sanitaire in effect, a Soviet preemptive 
strike would be less accurate and would also allow more reaction time for battle 
group missile defenses to detect, track, and destroy the incoming missiles. Both 
factors would increase the survivability of the aircraft carriers. 



Gilchrist 137 

Stabilization Through Separation of Forces. The high speed, accuracy, and 
lethality of modern naval surface-to-surface missiles greatly complicates the 
interaction between opposing surface combatants in close proximity during 
periods of crisis. As tensions escalate, it becomes increasingly likely that minor 
provocations or strictly defensive actions will be interpreted by the opposing 
tactical commander as an indication of an imminent attack, thereby triggering a 
defensive preemptive strike on his part. The initiation of hostilities, then, would 
not be controlled by the national command authorities of either side, but would 
result from the paranoia engendered by two opposing weapon systems operating 
within close range of each other in a volatile, edge-of-war situation. A cordon 
sanitaire, by separating opposing forces at sea, would help stabilize tensions by 
reducing the chance of hostilities commencing inadvertently through 
misinterpretation of actions by an opposing ship. 

Drawbacks and Dangers of Cordon Sanitaire 

It Invites Preemption. Argument Against Cordon Sanitaire: The declaration of 
a cordon sanitaire may be viewed as an ultimatum by the Soviet Union, analogous 
to the U.S. quarantine during the Cuban Missile Crisis. It is generally acknow- 
ledged that the Soviet capitulation to the demands of the United States at that 
time contributed to the downfall of Premier Khrushchev and accelerated the 
tremendous growth of the Soviet Navy. Undoubtedly the Soviet leadership 
would find anything resembling an ultimatum to vacate a cordon sanitaire around 
a carrier battle group most distasteful, and would agree to observe such a zone 
only if it was in their own best interest or if no reasonable alternative was available. 
The potential loss of face could be devastating for the Soviet oligarchy, both 
internationally and domestically. Backed into a corner by a cordon sanitaire 
ultimatum, Soviet leaders would unquestionably consider very seriously launch- 
ing a preemptive attack on the battle group sometime before the cordon sanitaire 
became effective, while accurate targeting information remained available and 
missile platforms were within range. 

Counter Argument: Even if the danger is very great that the declaration of a 
cordon sanitaire might provoke the preemptive attack it was designed to prevent, 
at some point, as tensions rise to the brink of war, cordon sanitaire could still be 
militarily attractive. If intelligence revealed a massing of Soviet naval units which 
could be the prelude to a coordinated strike, the declaration of a cordon sanitaire 
to take effect before the majority of the strike platforms were within missile range 
of the battle groups could force the Soviets to launch a less-than-optimum strike 
or else abide by the cordon sanitaire. Though a peak defensive posture could not 
reasonably be maintained for the days or weeks that a period of high tensions 
could last, the battle group could maintain peak defensive readiness during the 
24 hours or so between declaration and the time the cordon sanitaire went into 



138 Readings on International Law 

effect, thereby minimizing its vulnerability to a preemptive attack during the 
period of highest threat. 

It seems obvious that the less prepared the Soviets are to launch a preemptive 
strike against the battle group, the less likely it is that they would do so in response 
to a U.S. declaration of a cordon sanitaire. As Admiral Kidd pointed out in a 
conversation with this author, if insufficient numbers of surface and submarine 
antiship missile platforms were in position to participate in the strike, or if too 
few Backfire or Badger aircraft could be brought to bear (due to availability or 
range limitations), the Soviet Union would be reluctant to preempt through a 
hastily coordinated strike with what their historically cautious civil leadership 
would consider insufficient forces. Also, although there is not necessarily a direct 
connection between a war ashore and one at sea, Soviet leaders would probably 
be reluctant to commence hostilities by preempting naval targets until their were 
fully ready to launch their land campaign. Thus, through proper timing based 
on accurate intelligence of Soviet land, sea, and air activity, a U.S. cordon sanitaire 
declaration could catch the Soviets not optimally prepared to attack, and thereby 
increase the likelihood of their acceptance of the cordon sanitaire. 

Another means of reducing the likelihood of Soviet preemption after the 
declaration of a cordon sanitaire is to make the conditions of the cordon sanitaire 
appeal to the Soviets' own interests as much as possible. In the declaration message 
to the Soviets, stress should be laid on the advantages to both sides to be gained 
from the stabilizing effects of the separation of forces entailed in the cordon 
sanitaire. If the geography involved in the specific situation permits and the 
immediate mission of the battle group can still be accomplished, the cordon 
sanitaire could take the form of a "demilitarized zone" between the opposing 
forces, thereby making the declaration appear less one-sided and arbitrary. To 
have a reasonable hope of Soviet acceptance, the United States should indicate 
its willingness to abide by a similar restriction around Soviet battle groups. The 
implications of this will be discussed separately below. While the tone of the 
message declaring the cordon sanitaire must not be belligerent or threatening, 
the message must still convey the intent of the United States to protect the battle 
group against the unacceptable situation with force, if necessary. An overly 
conciliatory declaration would invite the Soviets to ignore the cordon sanitaire. 
An overly threatening tone could increase the likelihood of preemption by the 
Soviets. 

In summary, the declaration of cordon sanitaire is a provocative action and 
should be done with great care. Proper timing of the declaration based on 
intelligence data to maximize the U.S. tactical advantage, and careful wording 
of the declaration could combine to significantly reduce the danger. 

Enforcement Dilemma. Argument Against Cordon Sanitaire: It is almost certain 
that the Soviets would protest a U.S. declaration of cordon sanitaire as a violation 



Gilchrist 139 

of the Geneva Convention and accepted international law. If they were not yet 
ready to attack the battle group, or for whatever reason did not desire to do so, 
the Soviets might rely on their strong legal position and remain within the cordon 
sanitaire in defiance of the U.S. declaration. Such a course of action would place 
the United States in a difficult situation. If the United States backed away from 
its declaration, the nation would obviously lose credibility and expose itself to 
greater Soviet pressure. Enforcing the cordon sanitaire by firing on offending 
units would damage world opinion of the United States and would likely produce 
Soviet retaliation — perhaps a massive strike. Clearly, both of these outcomes are 
undesirable. 

Counter Arguments: The first option, backing away from the cordon sanitaire 
if the Soviets do not abide by it, should be discarded. The negative aspects of 
such a course of action, especially in a high tension crisis, would be devastating 
to U.S. interests. For this reason, the United States should never declare a cordon 
sanitaire without being fully resolved and capable of enforcing it. However, the 
consequences of sinking a Soviet ship within a designated cordon sanitaire, even 
after full warning, could also be very dangerous. An escalation ladder for 
enforcing the cordon sanitaire should be developed and used to ensure that 
excessive force is not used, thereby limiting the danger of Soviet retaliation. 
Below are examples of possible escalation ladders to compel Soviet surface, air 
and submarine units to vacate a cordon sanitaire. 

— Against surface units: 

1 . Use radio messages and light signals to warn the Soviet unit to leave the area. 

2. Attempt to overpower radio transmissions from the Soviet unit through 
jamming. 

3. Use shouldering to prevent the Soviet unit from following the battle group. 

4. Energize fire control radars. 

5. Buzz the Soviet unit with aircraft. 

6. Fire warning shots near the unit. 

7. Attempt to disable the Soviet unit's rudder or propeller with lines or ex- 
plosives. 

8. Attempt to disable communications and/or radar antennas with helicopters 
and grappling hooks or other available means. 

9. Seize the unit forcibly. 

10. Hit the Soviet unit with a single round of the least damaging weapon available. 

1 1 . Continue to fire single weapons at the unit at short intervals until it is disabled 
or departs the area. 

— Against air units: 

1 . Intercept the intruder with fighter aircraft. 

2. Warn the Soviet aircraft via radio and/or hand signals to leave the area. 

3. Fire warning burst of gunfire. 

4. Shoot the Soviet aircraft down, if necessary, to prevent it from obtaining 
effective targeting data on the battle group. 



140 Readings on International Law 

— Against submarines: 

1 . Track the unfriendly submarine with active sonar. 

2. Use "Uncle Joe" procedures with underwater devices to signal the submarine 
to surface. 

3. Attack with torpedoes. 

These examples only suggest some possible actions which could be included 
in an enforcement ladder. The point is, specific enforcement instructions from 
the national command authorities should be promulgated to the battle group 
commander when the cordon sanitaire is declared. Escalation along the ladder, 
however, should be closely controlled by the NCA in view of the extreme 
sensitivity of the operation. The object, of course, is to use the minimum amount 
of force necessary to compel the Soviets to vacate the cordoned area, in order to 
minimize the risk of escalatory retaliation. 

Promulgation of PIM. Argument Against Cordon Sanitaire: Establishing a 
cordon sanitaire around a moving battle group would require providing the 
group's PIM to the Soviets. This would, of course, provide them with valuable 
targeting data by itself, depending on the size of the declared cordon sanitaire. 
While the exact position of the carrier within the cordon sanitaire could not be 
precisely pinpointed (as would be the case with a tattletale), the general move- 
ments of the battle group would be known days, at least hours, in advance. This 
intelligence would allow the Soviets many possibilities to plan a preemptive 
strike. Based on the PIM information Soviet Ocean Surveillance System (SOSS) 
satellite sensors could be positioned to maintain general locating data on the battle 
group. Also, submarines could be positioned ahead of the cordon sanitaire and 
quietly let the battle group steam past, by their slow speed greatly increasing their 
chances of remaining undetected. Targeting data on the carrier could be 
broadcast by the subs when obtained, and a coordinated strike could then be 
launched. 

Counter Arguments: While the intelligence value of PIM information 
provided to the Soviets is significant, it certainly could not compare with the 
continuous stream of extremely accurate position information that would be 
provided by a tattletale unit in the absence of a cordon sanitaire. In the example 
discussed above, Soviet submarines would have to penetrate the battle group 
ASW screen to be able to provide accurate targeting data on the carrier. The 
submarines would also have to break radio silence to transmit the targeting 
information, making them very vulnerable to detection and prosecution as 
intruders. 

The PIM information could also be used as a deception device by the United 
States. The battle group could operate in a relatively small portion of the cordon 
sanitaire area furthest from the major threat axis. Or, the battle group could 



Gilchrist 141 

operate partially or completely outside the cordon area if needed or desired. With 
cooperative cloud cover, deceptive formations, and EMCON, the battle group 
could possibly elude SOSS sensors for several days. It seems obvious, then, that 
while providing the Soviets with battle group PIM information is a significant 
drawback of cordon sanitaire, it would still be much better than tolerating a 
tattletale within the battle group formations. False PIM information, coupled 
with other deceptive tactics, could be very helpful to the United States in certain 
situations. 

Reciprocity. Argument Against Cordon Sanitaire: As discussed in a preceding 
section, to soften the impact of the cordon sanitaire declaration the United States 
would have to be willing to abide by similar restrictions around Soviet task 
groups, or restrict in some other manner the movements of its naval units. The 
less unilateral and arbitrary the cordon sanitaire declaration is, the greater are its 
chances of success. The loss of intelligence to the United States caused by abiding 
by a Soviet cordon sanitaire could be important. Also, the Soviets could 
conceivably declare a large cordon sanitaire around many small surface groups 
in an effort to limit U.S. access to key areas of the high seas. For example, multiple 
Soviet cordons sanitaire in the North Atlantic approaches to Europe could delay 
the arrival of critical military supplies and reinforcements there. Depending on 
the specific scenario, there are many relatively restricted bodies of water where 
both navies would legitimately want to operate — for instance, the Eastern 
Mediterranean or Northern Arabian Sea. The existence of cordon sanitaire on 
both sides in such restricted, yet important areas would probably require some 
type of partitioning or demilitarized zone. Such an arrangement would be 
difficult to negotiate during times of crisis, and even under the best of situations 
would restrict to some degree U.S. movements within a strategic area. 

Another related danger is the possible proliferation of the use of cordon 
sanitaire beyond NATO and the Warsaw Pact. Its widespread use by small Third 
World nations, following a precedent set by the superpowers, could severely 
hamper free navigation, particularly along littorals. 

Counter Arguments: The loss of intelligence to the United States caused by 
abiding by a Soviet cordon sanitaire, while significant, would probably not be 
critical. U.S. satellite and standoff aircraft sensors are generally acknowledged to 
be superior to those of the Soviet Union. Also, since the U.S. objective is not a 
preemptive strike, it could presumably absorb this degradation of intelligence 
capability much more readily that the Soviets. 

Careful planning should be done in devising the initial cordon sanitaire area 
to ensure that Soviet naval or air units would not be totally blocked by the 
cordoned zone from access to their legitimate areas of concern. Such a precedent 
in the initial U.S. declaration, together with careful enunciation of the limits to 
which the United States would abide by Soviet cordons, would reduce the 



142 Readings on International Law 

likelihood of Soviet distortion of the concept that could severely disrupt critical 
allied shipping or naval operations. 

The problems of negotiating the partition of strategic bodies of water with 
the Soviets during periods of extreme tension, and the risk of troublesome 
proliferation of the use of cordon sanitaire by Third World nations could both 
be ameliorated through negotiations during peacetime. Bilateral talks with the 
Soviet Union concerning the full range of issues surrounding the concept of 
cordon sanitaire and the unique danger posed by tattletale targeting units could 
lead to a formal agreement or understanding which would spell out limits and 
procedures governing the use of cordon sanitaire and the partitioning of restricted 
areas of dual interest. Ideally, such an agreement would prohibit the shadowing 
of combatant units even in peacetime, making specific cordon sanitaire declara- 
tions unnecessary. 

It is perhaps too optimistic to expect the Soviet Union to agree formally to 
(or even seriously to discuss) the concept of cordon sanitaire, since the loss of 
their tattletales would gready reduce their preemptive strike capability. However, 
even if no agreement were reached, the Soviets would be aware of the U.S. 
intention to use cordon sanitaire, and this awareness would be a stabilizing 
influence, reducing the chance of misunderstanding when a U.S. cordon sanitaire 
is, in fact, declared. 

The United States should also push for legal recognition of cordon sanitaire 
as a necessary defensive measure in international forums, such as Law of the Sea 
Conferences and the United Nations. By stressing the intolerable threat posed 
by even an unarmed tattletale in this age of long-range, high-speed, extremely 
destructive missiles, together with the already acknowledged right of a nation to 
defend itself against an imminent threat, the United States could make a 
convincing case for the formal legalization or recognition of this concept. Such 
formalization would undoubtedly place specific conditions and restrictions on 
the legal use of cordon sanitaire, thereby reducing the potential for abuse by the 
Soviet Union and Third World nations. 

Surveillance Requirements. Argument against Cordon Sanitaire: Very strict 
surveillance in all three media — surface, subsurface, and air — would be necessary 
to prevent Soviet intrusion into the cordoned area even after it was established. 
Surveillance requirements in areas of extremely dense air and surface traffic could 
quickly overwhelm the assets available. Sufficient numbers of E-2C (for air and 
surface surveillance), F-14 (for intercepting unidentified air contacts), and S-3 
(for ASW search) aircraft to enforce the cordon sanitaire in such areas would 
probably be beyond the capability of a single carrier. The battle group would be 
particularly vulnerable to intrusion at night by surface units using deceptive 
lighting and other devices. 



Gilchrist 143 

Counter Arguments: While surveillance requirements of a cordon sanitaire 
would be very high, it is not obvious that they would be reduced in the absence 
of the cordon sanitaire, given the common context of high tensions. With a 
tattletale in company, battle group surveillance efforts would be, if anything, 
intensified in order to locate all missile platforms within range of the battle group, 
which could be up to 300 miles. Surveillance requirements, since they would 
actually be greater without a cordon sanitaire, argue in favor of declaring a cordon 
sanitaire. 

World Opinion. Argument Against Cordon Sanitaire: Established international 
law, as previously noted, argues predominantly against the legality of a cordon 
sanitaire. A U.S. declaration of a cordon sanitaire under the present system of 
international law would probably be viewed negatively by most Third World 
nations. It would also provide the Soviet Union valuable propaganda material 
with which to sway world opinion in its favor during the crisis. Any NATO 
nations with conflicting interests in the East-West crisis which might be per- 
suaded to withhold their forces or support facilities in the event of hostilities 
would be particularly valuable targets of such a propaganda campaign. Exploiting 
any lack of political cohesiveness in the NATO Alliance would be a high priority 
for the Soviets, particularly during a rising crisis, and a U.S. cordon sanitaire 
widely viewed as illegal could provide the USSR with a very useful wedge with 
which to split or weaken NATO solidarity. 

Counter Arguments: This is probably the most convincing argument against 
the feasibility of the concept of cordon sanitaire. At present, the political and 
diplomatic risks involved in declaring a cordon sanitaire would very likely 
dissuade the national command authorities from implementing the concept. 
Even if all military factors clearly favored establishing a cordon sanitaire in a given 
crisis situation, the overriding political concern for maintaining the strongest 
possible relations with allies and key Third World nations would probably 
preclude its use. 

Several steps could and should be taken now to win international acceptance 
of the concept of cordon sanitaire as a legal defensive measure, in order to make 
its use more viable in a crisis situation. First, the United States should present to 
our NATO allies and other key friendly nations (at both the military and 
diplomatic level) the advantages and legal arguments in favor of the cordon 
sanitaire concept. The purpose would be to build support for the concept, or, at 
the very least, assuage as much as possible any negative responses of friendly 
nations. After achieving a semblance of allied unity, the United States, bolstered 
by other nations favoring the concept, should press for formal legalization of 
cordon sanitaire in truly international forums such as the United Nations and 
Law of the Sea Conferences. Such a process would doubtless be long and, 
perhaps, ultimately unsuccessful (at least in terms of formal recognition of cordon 



144 Readings on International Law 

sanitaire as a legal defensive measure). Even so, U.S. arguments indicating our 
desire and intention to use a form of cordon sanitaire when necessary would 
serve to condition the international community to expect such a move. This 
would remove much of the shock and outrage from the reactions of the world 
community and make the implementation of a cordon sanitaire by the United 
States much less destabilizing politically, both within NATO and throughout the 
Third World. 

What to Do 

There are some actions which can both reduce the military and political risks 
associated with cordon sanitaire and enhance its attractiveness to the national 
command authorities as a means of protecting our naval striking power from 
preemptive attacks. These actions are not risky, not expensive, and should be 
begun without delay. 

The Joint Chiefs of Staff should: 

— Enhance U.S. intelligence capabilities to assess and to report rapidly on 
Soviet readiness and possible strike indications. 

— Develop clear and logical rules of engagement for the enforcement of a 
cordon sanitaire to ensure compliance by Soviet units while using the absolute 
minimum force necessary in the process. 

— Impress upon the national civilian leaders the seriousness of the threat 
posed by Soviet tattletales during crisis situations, and press for the diplomatic 
action listed below. 

The national civilian leaders should: 

— Fully recognize the unacceptable risk embodied in a Soviet tattletale and 
the potential benefits of a cordon sanitaire. 

— Begin talks with allies and other friendly nations to gain support for the 
concept of cordon sanitaire as a legal defensive measure in times of extreme crisis. 

— Bring the issue of formal recognition and legalization of cordon sanitaire 
before future Law of the Sea Conferences and the United Nations. 

— Negotiate bilaterally with the USSR (or within a NATO /Warsaw Pact 
framework) for an agreement concerning tattletales and cordon sanitaire. 

If these recommendations are implemented, cordon sanitaire could be trans- 
formed from an esoteric idea into a truly viable and extremely valuable measure 
to reduce significandy the vulnerability of U.S. aircraft carriers to preemptive 
attacks. Even if ultimately they proved unsuccessful, the diplomatic initiatives 
suggested above would still serve to make cordon sanitaire more politically 
attractive. If, during formal negotiations, the United States publicly states its 
intention to use cordon sanitaire and specifies clearly and logically why it is 
necessary, the Soviet Union and Third World nations would not be surprised by 






Gilchrist 145 

its use during some future crisis, and their reactions, even if unfavorable, would 
be more reasoned and restrained. 

Cordon sanitaire has tremendous potential as a means to reduce the vul- 
nerability of U.S. aircraft carriers. The problems currendy limiting its practical 
application are solvable, but many of the solutions require a peaceful diplomatic 
environment and considerable time to implement. It is therefore important to 
begin the diplomatic actions recommended above as soon as possible. The fate 
of many of our aircraft carriers may well depend on it. 



Lieutenant Commander Gilchrist was assigned as a naval aviator with Patrol Squadron 30 at the 
time this article was first published. 



Notes 

1. Lehman, Aircraft Carriers: The Real Choices, 6, No. 52 The Washington Papers 39 (1978). 

2. Telephone Interview with Admiral Isaac Kidd, USN (Ret.), Washington, D.C. Qanuary 23, 1982). 

3. Interview with Captain Stuart D. Landersman, USN, Naval War College Strategic Studies Group, 
Newport, R.I. (January 12, 1982). 

4. U.S. Treaties, etc., "Law of the Sea: Convention on die High Seas," United States Treaties and Other 
International Agreements, TIAS 5200 (Washington: U.S. Dept. of State, 1962), v. 13, pt. 2, at 2314. 

5. U.S. Treaties, etc., "Prevention of Incidents On and Over the High Seas," United States Treaties and 
Other International Agreements, TIAS 7379 (Washington: U.S. Dept. of State, 1972), v. 23, pt. 1, at 1168-1173. 

6. Office of the Chief of Naval Operations, Law of Naval Warfare (Washington: U.S. Govt. Print. Off., 
1974), pp. 4- 12a, 4-13. 

7. Interview with Colonel Joseph D. Ruane, USMC, Naval War College Strategic Studies Group, 
Newport, R.I. (January 12, 1982). 



Chapter 1 1 

Marine Technology Transfer and the 
Law of the Sea* 



Lieutenant Commander James Stavridis, U.S. Navy 

On 10 December 1982, the signing ceremony was held for the United 
Nations Convention on the Law of the Sea (UNCLOS) in Montego Bay, 
Jamaica. The comprehensive Law of the Sea Treaty was signed by delegates from 
117 countries, and the document represented over nine years of difficult 
negotiations conducted by nearly 3,000 delegates. The Treaty is a comprehensive 
effort to regulate the world's oceans, and includes provisions on a wide range of 
issues, including: territorial seas, the continental shelf, the high seas, marine 
scientific research, exploitation of the deep seabed, straits passage (for commercial 
shipping and warships), fishing rights, and technology transfer. The United States 
refused to sign the Treaty, along with 22 other countries. In describing U.S. 
objections to the document, chief delegate Thomas Clingan said, "no nation 
should be asked to sacrifice fundamental national interests." One primary area 
of concern for the United States is that portion of the Treaty that creates an 
International Seabed Authority (ISA or the "Authority") to regulate the mining 
of strategic minerals from the deep seabed — the floor of the ocean under the high 
seas. Within the deep seabed mining sections of the Treaty, one particular issue 
of fundamental concern to U.S. negotiators is the mandatory transfer of marine 
technology. Of special concern and sensitivity is the closely held technology that 
would be required to mine the floor of the deep ocean for the rich lodes of nickel, 
copper, cobalt, and manganese, found in the "manganese nodules" throughout 
the ocean floor. 

The associated technology (which would involve the prospecting, collecting, 
surfacing, transporting, and processing of the manganese nodules) covers a wide 
range of equipments and techniques in the marine environment. In addition to 
the deep seabed mining technology, which would be available for mandatory 
transfer, the Treaty further establishes regional centers to encourage other forms 
of technology transfer. The issue of marine technology transfer in the context of 
the Law of the Sea Treaty is an emotional one. It is colored by: overtones of the 
entire North-South debate, questions of the free market and competitive 

* Reprinted from the Naval War College Review July- August 1983. 



148 Readings on International Law 

development of technology, and the issue of the deep seabed as the "common 
heritage of all mankind,'* versus the principle of freedom of the high seas. 

Technology transfer as a process is a straightforward matter. It is the concept 
of passing scientific knowledge and technology from one State or organization 
to another. In the Law of the Sea Treaty, the heart of the matter is contained in 
Article 144, Transfer of Technology. The article states: 

1. The Authority (the international organization established to regulate the deep 
seabed) shall take measures in accordance with this Convention (the Treaty): 

(a) to acquire technology and scientific knowledge relating to activities in the 
Area (the deep seabed); and 

(b) to promote and encourage the transfer to developing States of such 
technology and scientific knowledge so that all States Parties benefit therefrom. 

The broad principles of Article 144 are specified in Annex III to the Treaty, 
which deals with basic conditions of prospecting, exploring and exploiting the 
deep seabed. In Article 5 of Annex III, also entitled Transfer of Technology, very 
detailed instructions are listed dealing with mandatory transfer of marine tech- 
nology. Article 5 specifies that: 

• Applicants (Private corporations or state-run companies) will provide the 
Authority with a general description of equipment and methods pertaining to 
their specific mining project. 

• Applicants and operators will inform the Authority whenever "substantial 
technological change or innovation" is introduced. 

• Operators will make technology available to the Enterprise (the mining arm 
of the Authority) "on fair and reasonable commercial terms and conditions." 

• Such technology could be transferred to the developing States by the 
Enterprise/Authority in cases where the developing State had applied for the 
right to participate in the deep seabed mining operation. 

• Technology transfer provisions would be in force for the first 10 years after 
the Enterprise begins commercial production of minerals from the resources of 
the deep seabed. 

• Technology is defined very broadly, to include specialized equipment and 
technical know-how, including manuals, designs, operating instructions, train- 
ing, and technical advice and assistance necessary to assemble, maintain, and 
operate a viable system and the legal right to use these items for that purpose on 
a nonexclusive basis. 

Marine Technology 

The stakes involved in the issue are enormous. The strategic importance of 
the technology is immense, particularly since it represents the ability to assure a 
nation a stable, virtually inexhaustible supply of cobalt (jet engines and other 



Stavridis 149 

high-tech applications), manganese (steel production), copper, and nickel. The 
United States currently imports over 97 percent of its cobalt and manganese, as 
well as 70 percent of its nickel. The land-based producers of U.S. cobalt and 
manganese are not politically stable (Zaire and South Africa, for example), and 
the prices of the minerals have been extremely volatile. The deep seabed mining 
technology that could be transferred under the mandatory portions of the Law 
of the Sea Treaty could include the machinery and technology necessary to: 
prospect (undersea vehicles, surface ship navigation and positioning systems, 
sonic searchers), harvest the manganese nodules (mining vehicles capable of 
operating at the 14,000-18,000-foot depths of the deep seabed), lift (conveyors, 
pneumatic lift devices), transport (ships, loading systems), and process (artificial 
islands and ports, chemical processing equipment, refining, mineral/metal 
transport). Many of the technologies involved in deep seabed mining are 
extremely sensitive, representing proprietary knowledge developed by private 
corporations. In addition to the innate value of the innovative technology, the 
value of the deep seabed mining technologies must be measured against the 
opportunity it affords for exploiting the vast hoard of minerals on the deep seabed. 
Clearly, the value of the technology is enormous. Some analysts place its worth 
in the billions of dollars. 

The Treaty allows for mandatory transfer of deep seabed mining technology. 
It also strongly encourages the transfer of other marine technologies, although it 
does not provide for any other mandated transfers. The value of the other marine 
technologies is also considerable. One of the strongest sections of the Treaty 
encourages the exchange and transfer of information and technology involved 
with fishing. Many new techniques have been developed over the past decades, 
yet virtually all of the world's fishing is still done with primitive methods. "Major 
innovations include nylon nets, new devices and techniques for fish location, 
sonars, echo sounders, long distance processing factory ships, and sophisticated 
trawling." The development of sea farming and aquaculture are also being 
explored. 

Other interesting advances are being made in the technology of artificial 
islands. This involves recovering land areas from the ocean and using them in a 
variety of high technology and agricultural ways, including nuclear power sites, 
defense installations, toxic waste processing, storage, refining, and other factory 
uses. The technology involved here could also lead to great improvements in 
harbor capabilities. The artificial islands technology could be liable for mandatory 
transfer if such stations were used specifically for the processing of the deep seabed 
mining minerals, which is a good possibility because of environmental and 
ecological considerations. 

Offshore hydrocarbon installations are a part of marine technology that is 
constantly improving. There are more than 700 active rigs operating in the world 
today, and more are being constructed, using extremely advanced technology at 



150 Readings on International Law 

costs in excess of $1 billion per rig. Many experts believe that the source for over 
50 percent of the world's hydrocarbons (oil and natural gas) will be the oceans 
by 1990. The developing countries are naturally desirous of obtaining this 
complex technology for exploitation around their own shores. 

Other advances associated with marine technology include the areas of 
shipbuilding, tidal/current power production, ocean thermal energy projects, 
and the extraction of minerals and chemicals from seawater, muds, polymetallic 
sulfides, etc. The precedent of the deep seabed as the "common heritage of all 
mankind" could conceivably be applied in many other areas. The Treaty already 
provides a framework for the systematic transfer of marine technology from the 
industrial world to the developing countries, although it is mandatory only in the 
area of deep seabed mining at the present. However, it is important to bear in 
mind the wide range of marine technologies that are subsumed in the category 
of "seabed mining." 

Overall, it is clear that marine technology will have an increasingly important 
impact on the standard of living and the economic welfare of many countries. 
The issue of the transfer of such technology will continue to be a key concern 
in the North-South dialogue in general and in the Law of the Sea Treaty in 
particular. 

Industrial Countries 

By far the majority of the marine technology in the world today is held by 
the industrial countries, including primarily the United States, Western Europe, 
and Japan. The position of the Western nations on the issue of technology transfer 
in the Law of the Sea context is not unified. The United States, particularly under 
the highly free-enterprise oriented Reagan administration, is strongly opposed 
to the mandatory transfer of any marine technology. On 29 January 1982, 
President Reagan released a statement announcing that the United States would 
return to the Law of the Sea negotiations after a hiatus of nearly a year. He voiced 
six key areas of concern with the Treaty, most of which were involved in one 
way or another with the deep seabed mining portion of the accord. He said, "... 
the Convention should not contain provisions for the mandatory transfer of 
private technology." Ambassador James Malone, the Special Representative of 
the President for the Law of the Sea negotiations, echoed the same thought in 
testimony before the House Merchant Marine and Fisheries Committee on 23 
February 1982: "There is a deeply held view in our Congress that one of 
America's greatest assets is its capacity for innovation and invention and its ability 
to produce advanced technology. It is therefore understandable, that a Treaty 
would be unacceptable to many Americans if it required the United States, or 
more particularly private companies, to transfer that asset in a forced sale." 
Other Western nations are not so vocal in their opposition to the technology 



Stavridis 151 

transfer provisions of the Treaty, but many are sympathetic to the U.S. position, 
especially Great Britain and West Germany, neither of whom have signed the 
Treaty to date. On the other hand, some of the Western countries with advanced 
marine technology seem willing to let the mandatory technology provisions 
stand, notably France and Japan, both of whom signed the agreement. It is also 
important to note that within the industrialized countries, a wide diversity of 
opinion exists on the concept of mandatory transfer of technology, ranging from 
the strong opposition of most corporations to support from many journalists and 
academics. Overall, the industrial countries accept the concept that some tech- 
nology transfer is an acceptable political and philosophical idea, but they are 
unwilling to see the technology transferred via mandatory controls of the 
Authority. The preference is for joint ventures, with the industrial corporations 
holding the technology for some specified period of time and gradually transfer- 
ring it to the developing countries. While some of the industrial countries are 
willing to accept the mandatory technology transfer provisions of the Treaty, the 
influence and attitude of the United States toward the document remains a 
significant block to the emerging ocean regime in general and marine technology 
transfer in particular. 

Developing Countries 

The developing countries see the issue of technology transfer as one of the 
key ingredients of the New International Economic Order (NIEO), with the 
Law of the Sea Treaty and its provisions for mandatory transfer as being on the 
cutting edge of that movement. From a philosophical standpoint, the developing 
countries are strongly in favor of increasing the flow of technology, via mandatory 
regulation if necessary, to their economies; and they are also avid supporters of 
the concept of the deep seabed as the "common heritage of all mankind." They 
see the mandatory technology transfer provisions as part of their opportunity to 
share in the wealth, prosperity, and property that has accrued to the West. 

The developing countries perceive the distribution of the world's wealth as 
unequal, and they seek to correct it via a political process, of which marine 
technology transfer is part of the current agenda. From a pragmatic standpoint, 
on the other hand, most developing countries are not yet ready for a large and 
sudden influx of advanced marine technology. They have neither the trained 
personnel nor the capital or infrastructure to effectively utilize it. The Law of the 
Sea Treaty does establish a principle or precedent for mandatory transfer, and it 
is therefore considered of critical importance by much of the developing world. 
Specifically, the developing countries are calling for: 

• Mandatory transfer of marine technology 

• More information from the multinational corporations operating in the 
developing countries and on the high seas 



152 Readings on International Law 

• Better training for users of the technology (in the developing world) 

• An equal chance to exploit the seabed ("the common heritage principle") 
The developing countries are quick to point out that they do not claim any 

right to technology that is used only in the industrial countries and not on the 
high seas or deep seabed. They admit that such equipment and knowledge is 
clearly "private property." Their concern is directed toward technology that is 
used to exploit the ocean, "the common heritage of all mankind." They argue 
that since the marine technology is used in what is, in effect, a global common, 
the returns should be shared with the entire global community. They see 
mandatory technology transfer as one keystone of this program. Finally, the 
developing countries believe that they were the victims of exploitation by the 
Western powers throughout the colonial period. Implicit in many of their 
declarations and proposals is the idea that they are "due" their share in global 
mineral wealth and advanced technology in return for decades of exploitation. 

Corporations 

Most of the marine technology that is held by Western countries is in the 
hands of a collection of large corporations. As a rule, the Western companies are 
opposed to the mandatory transfer of marine technology. The U.S. Chamber of 
Commerce, which represents 187,000 firms and individuals in business, is 
particularly opposed to the concept. In a position paper of 5 August 1981, the 
Chamber's spokesperson commented, "Privately owned technology in this 
country is not the 'common heritage of mankind.'" The position paper points 
out that the technology in the United States has been developed because of the 
"American economic system," which "encourages and protects the development 
of technology." The paper goes on to comment that lack of full protection, i.e., 
technology transfer as outlined in the Law of the Sea Treaty, will only act as a 
major obstacle to the development and utilization of important minerals and 
hydrocarbon recovery technology. This, again according to the Chamber, will 
ultimately be detrimental to the companies, the developing countries, and the 
industrial nations alike. 

The basic attitude of most corporations is that technology transfer is a fine 
idea, but it must be profitable for both the transferor and the transferee. If the 
incentives inherent in the United States and other Western patent systems are 
altered by the Authority, less and less new technology will be developed. George 
W. Whitney, President of the American Patent Law Association, commented 
before the Committee on Foreign Relations of the U.S. Senate: 

"High technology products, machines, and processes are assets acquired at 
high costs and considerable risks. Their development requires long term 
expenditures of money and manpower. To efficiently mine the sea, not only 
will existing technology and experience have to be greatly advanced, but whole 



Stavridis 153 

new technologies will have to be developed. We cannot conceive that any 
American industry will undertake this major endeavor, knowing that what it 
invents and brings into being will immediately be transferred to its competitors. 
We as their advisors could not in good faith recommend such action." 

The influence of powerful lobbying groups such as the Chamber of Com- 
merce and large individual corporations is immense. In particular, four major 
consortia of large, multinational corporations have already staked a claim in the 
deep seabed as "pioneer investors.'* These include: 

Kennecott Consortium: Sohio, Rio Tinto-Zinc, BP, Noranda Mines, Mit- 
subishi, Kennecott. 

Ocean Mining Associates: US Steel, Union Minere, Sun Chemicals, Ente 
Nazionale Idrocarburi. 

Ocean Management, Inc.: INCO, Metallgesellschaft, Preussag, Salzgitter, 
SEDCO, Deep Ocean Mining. 

Ocean Minerals Co.: Standard Oil, Lockheed, Billiton (Shell) BKW Ocean 
Minerals. 

Such large, multinational groups have brought considerable pressure to bear 
in the various Western countries opposed to the marine technology transfer 
provisions of the Law of the Sea Treaty. They will continue to oppose the process 
even if their individual governments sign the Treaty. 

Problem 

The problem with instituting marine technology transfer via the Law of the 
Sea Treaty is obvious — the Western countries and multinational corporations 
that currently hold the technology have little desire to share it with the 
developing countries, at least as part of a mandated transfer. On the other hand, 
the industrial countries and the companies do want the formal, legal protection 
offered under the aegis of a widely supported Law of the Sea Treaty. Additionally, 
the West is very interested in other parts of the Treaty that guarantee vessel 
(commercial and warship) passage rights, define coastal boundaries, establish 
exclusive economic zones, and ensure overflight above strategic straits. Finally, 
from a philosophical standpoint, the West is in favor of technology transfer in 
order to promote general global advancement and raise the standard of living in 
many developing countries, so long as the transfer of technology is accomplished 
by an "orderly and efficient" means. The developing countries are strongly in 
favor of the transfer process as outlined in the Law of the Sea Treaty since they 
are the prime beneficiaries of the system. Both sides agree that the fundamental 
question of technology transfer is a key element in North-South relations, and 
most of the countries involved believe that the United Nations is an acceptable 
forum for working toward a solution. 



154 Readings on International Law 

Proposed Solution 

The problem of marine technology transfer is not the only stumbling block 
to universal acceptance of the United Nations Law of the Sea Treaty. Most of 
the industrial countries have additional grievances with the deep seabed mining- 
Authority system. Negotiations broke down completely between the major 
contending blocs at the eleventh and final meeting of the Convention in New 
York in March- April 1982 over several other issues, and the gulf between the 
countries willing to sign the Treaty and those who refuse seems wide today. 
"We have been the whipping boys here," commented Thomas Clingan, the 
U.S. delegate to the Jamaican signing ceremony. There are rumblings of 
retaliation, protectionism, nationalization of overseas assets, and the like from 
disgruntled developing countries. Paul B. Engo of Cameroon said at the 
ceremony that the United States "cannot now afford the discomforts of isola- 
tion," and Ambassador Clingan acknowledged that the U.S. position was "bound 
to harden North-South feelings." Although the problems with the Law of the 
Sea Treaty will not be quickly solved, it seems that on the issue of marine 
technology transfer at least, there is room for maneuver. The following proposals 
are designed only to mention a few ideas that might provide a starting point if 
further negotiations are undertaken. The proposals can easily be criticized from 
both sides, but some compromise by both the industrial countries and the 
developing countries will be necessary if an agreement on international marine 
technology transfer is to ever attain global importance and acceptance. As an 
opening agenda for discussion, the following points are suggested: 

• Continue using the United Nations as a forum for discussion. While 
criticized by many in the industrialized countries for its highly politicized 
atmosphere, the United Nations still remains the only organization that brings 
together delegates from virtually every country in the world in some semblance 
of orderly debate on a regular basis. It is clearly the right organization for 
establishing a system for marine technology transfer. 

• Using a separately established commission of U.N. delegates from key 
industrial and developing countries, work toward modifications in procedure or 
additional agreements that could make the technology transfer process, as so 
outlined in the treaty, acceptable to the industrial countries. Specifically, work 
for an agreement on a patent system for marine technology as outlined below. 

• Develop a patent system that would apply direcdy to marine technology 
and that would be eligible for transfer under the terms of the Law of the Sea 
Treaty. Some period of patent protection could be established. This could be a 
fairly short period, something less than the amount of time allowed under most 
Western patent systems, but still long enough to provide the inventor with an 
incentive to develop the technology through some equitable recapture of 
investment costs. A period of around 5 years might be acceptable to the 






Stavridis 155 

corporations, the industrial countries, and the developing countries. The exact 
length of time could be tailored to the specific technology by a board composed 
of representatives from business, the home country government, and a mixed 
group from the industrial and the developing countries. During the period of 
time the patent is in force, an extra tax could be levied by the Authority, the 
funds from which could be used to sponsor educational benefits for the develop- 
ing country students in Western educational institutions. 

• Recognize and utilize the value of Western educational institutions in the 
technology transfer process. It seems that many of the negotiators are overly 
concerned with the hardware side of the technology transfer process. It is easy 
to overlook the fact that thousands of college and graduate students are intimately 
and constantly involved in very fundamental technology transfer every day in 
Western universities and colleges. No hardware is useful for a developing country 
without the personal expertise to make it work. In the United States, for example, 
some major universities have a foreign student contingent as high as 17 percent. 
There are currently in excess of 175,000 foreign students enrolled in the United 
States alone. As the "baby boom" generation moves out of college age, many 
educational institutions are scrambling for students. It seems that it would be 
possible to use some of the profits from the advanced marine exploitation to 
sponsor students of the developing world at American and other Western 
universities. This would take the place of outright mandatory transfer of tech- 
nology. The industrial countries would enrich their university systems, spread 
their cultural influence, and satisfy developing world demands. The developing 
countries would gain needed background technical skill to handle the technology 
that would eventually be available in their countries. 

• Utilize joint ventures to effect the gradual transfer of marine technology. 
Rather than instituting a program that would mandate technology transfer to the 
developing countries, it seems more effective in the long run to encourage joint 
ventures on the part of the industrial corporations and the developing countries. 
This would ensure a mutually profitable flow of technology to the developing 
world, while still providing some protection to proprietary technology holders. 
While Deep seabed mining will be beyond the capability of developing countries 
for some time to come, joint ventures in fishing, artificial island construction, 
ocean energy projects, and the like, seem plausible and mutually profitable. 

• Allow strict government prohibition of all security-sensitive marine tech- 
nology transfers. Much discussion has taken place over the possibility of security 
leaks as a result of the technology transfer process. These worries seem overdrawn 
in the area of marine technology, particularly since the Treaty specifically allows 
any government to shield sensitive technology for security purposes. However, 
this protection must be respected if the industrial nations will agree to the concept 
of marine technology transfer in the future. 



156 Readings on International Law 

Conclusions 

The issue of marine technology transfer in the Law of the Sea context is an 
issue with a relatively low profile. The general public is unaware of the problem, 
and "public opinion" on the issue, such as it exists today, is manufactured by a 
small handful of lobbyists for business interests, competing segments of the U.S. 
government, journalists, academics, and publicists. Yet it is important to remem- 
ber that the Law of the Sea Treaty in general and, marine technology transfer in 
particular, represent the cutting edge of what will be the great conflict of the 21st 
century — the competition for the allocation of dwindling resources among a 
growing world population. This is a competition that may not be a centerpiece 
in East- West ideological debate, but will rather be concerned with issues of 
survival, wealth, and poverty, as they apply to mankind as a whole. Access to 
strategic minerals at the bottom of the ocean is one early manifestation of this 
conflict, and it will come to include the exploitation of protein, hydrocarbons, 
energy (thermal, current, tidal, and salinity gradient), fresh water, and other 
resources from the sea. It will be paralleled by conflict over the two other "global 
commons," Antarctica and space. In the final analysis, the issue of mandatory 
transfer of marine technology is at the forefront of the much larger issue of 
deciding what truly is the common heritage of all mankind. The question 
becomes one of drawing complex lines across emotional issues that impact on 
national survival, a delicate process indeed. All mankind does have a stake in the 
exploitation of the open ocean and the deep seabed but it must be undertaken 
carefully and with due concern for all parties, including the corporations of the 
West (and their millions of stockholders) as well as the rights of the developing 
countries. The objective of a lasting global accord on the management of the 
world's oceans is a good one; but in order to achieve a legitimate universal 
consensus, further discussion and negotiation will be required. The current Law 
of the Sea Treaty is a beginning, but additional modification on technology 
transfer, and other issues, will be required before the United States and other 
Western countries will enter into the agreement. This analysis has been offered 
as a contribution toward that process of negotiation, and it is hoped that the 
suggestions contained in this brief paper will offer a point of departure in the 
search for compromise. 



Lieutenant Commander Stavridis was attending The Fletcher School of Law and Diplomacy 
of Tufts University when this article was first published. 



Notes 

1. Ill Nations Sign Sea Treaty, U.S. Refuses, The Boston Globe, 11 December 1982, p. 4. The Treaty 
will come into effect one year from the date of deposit of an instrument of ratification by the 60th country, 



Stavridis 157 

which means sometime in 1984, according to most observers. [The treaty actually entered into force on 16 
November 1994.] 

2. Bernard D. Nossiter, Soviet and the U.S. Clash on Sea Law, The New York Times, 10 December 1982, 
p. A10. 

3. Ronald Reagan, Presidential Statement, issued in Washington, D.C, 8 July 1982. Also mentioned in 
this statement as U.S. problems with the Law of the Sea Treaty were deep seabed mining provisions in general, 
the treaty's decision-making process, and the application procedure for deep seabed miners. 

4. Convention on the Law of the Sea and Resolutions I-IV, Third UN Conference on the Law of the Sea, 
reproduced by the Office of Ocean Law and Policy, Department of State, Washington, D.C, June 1982, 
Article 144, at 64. 

5. Id., Annex III, Article 5, at 162-164. 

6. MOORE, JANE'S OCEAN TECHNOLOGY 1981/82 750-755 (1981). 

7. Boczek, The Transfer of Marine Technology to Developing Nations in International Law. Paper presented at 
the 22nd Annual Convention of International Studies Association, Philadelphia, 18-20 March 1981, at 32-33. 

8. A. Slingerland and P. Wilmot, ed., Technology Assessment and the Ocean, Proceedings of the International 
Conference on Technology Assessment, Naval War College Library, Newport, R.I., at 20-30, based on 
conference held in Monaco, October 1975. 

9. EARNEY, PETROLEUM & HARD MINERALS FROM THE SEA 36 (1980). For cost of construction, 
see recent issues of Offshore Magazine or the Oil & Gas Journal. 

10. Ronald Reagan, Presidential Statement, issued in Washington, D.C, 20 January 1982, at 1. 

11. James Malone, Statement before the House Merchant Marine and Fisheries Committee (Washington, D.C, 
23 February 1982), at 1. 

12. Supra n. 1. 

13. See for example, interview with Marne Dubs, director of corporate technology at Kennecott 
Corporation, Deep Seabed Mining: Where Do We Go From Here?, E&MJ Magazine, September 1981, at 125, for 
representative corporate reaction to the mandatory transfer process. The Boston Globe and The New York 
Times, on the other hand, have favored signing the treaty in editorials in 1982. 

14. Convention on the Law of the Sea and Resolution I-IV, Article 136, p. 61. The concept of "the common 
heritage" also appears in many U.N. documents and resolutions, including U.N. General Assembly Resolution 
2749 (XXV), 1970, "Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil 
Thereof, beyond the Limits of National Jurisdiction," 25 G.A.O.R. Supp. 28 (A/8028), 17 December 1970, 
at 24. 

15. These demands are voiced in a wide variety of fora and discussion, including General Assembly 
resolutions; statements from meetings of other world organizations like the OAS, OAU, or OPEC; conferences 
such as the law of the sea meetings or north-south summits, etc. A good summary from the broad position of 
the third world can be found in Grubel, The Case Against the New International Order, THE CONTEMPORARY 
INTERNATIONAL ECONOMY: A READER 484-490 (Adams ed. 1979). 

16. Position Paper on Technology Transfer, Technology Transfer Task Force, Chamber of Commerce of the 
United States of America, Washington, D.C, 5 August 1981, at 1-8. 

17. Id. tt I. 

18. Id. at 1-8. 

19. Id. at 5-6. 

20. Sea Law — A Rendezvous with History, U.N. Chronicle 14 (fune 1982). 

21. In fact, the United States was one of only four countries to vote against the current draft of the Law 
of the Sea Treaty. The entire course of the often stormy eleventh session of the UN Conference, March-April 
1982, is well documented in many articles. See especially the series of articles by Bernard Nossiter in The New 
York Times, the U.N. press releases (issued daily) on the entire session, or supra n. 20. 

22. Bernard Nossiter, U.S. Is Said to Be Isolated in Its Opposition to Sea-Law Treaty, The New York Times, 
9 December 1982, at All. 

23. Id. 

In addition to the sources mentioned above, two government documents that present the entire Law of 
the Sea issue, especially in regard to the U.S. position are: 

Hearings before the Subcommittee and the Committee on Merchant Marine and Fisheries, House of 
Representatives, 97th Congress, on The Law of the Sea, 22 October 1981, 23 February, 20, 27 July 1982, Serial 
Number 97-29. 

Hearings before the Committee on Foreign Affairs, House of Representatives, 97th Congress, Second Session, 
17 June, 12 August, and 16 September 1982, U.S. Foreign Policy and the Law of the Sea. 



Chapter 1 2 
Law of the Sea—What Now?* 

Jon L. Jacobson 



On 30 April 1982, following nearly fifteen years of preparations and formal 
deliberations, The Third United Nations Conference on the Law of the 
Sea (UNCLOS III) finally adopted a new, comprehensive treaty on the Law of 
the Sea. The vote was 130 nations in favor, 4 opposed, and 17 abstentions. The 
United States cast one of the four negative votes. 

On 10 December 1982, the new treaty, officially known as the 1982 
Convention on the Law of the Sea, was opened for signature in Montego Bay, 
Jamaica. On that first day (of a two-year signature period), 117 nations signed. 
Signers included most of the Third World, several Western European countries, 
and the Soviet bloc. 

The United States refused to sign. So did 23 or so other nations, but the United 
States was the only nation to announce that it would never sign or ratify or 
otherwise participate in the treaty. Japan and several other countries have since 
signed, although ratifications (the formal indications of intent to be bound by the 
treaty) have been slow in coming. 

The United States* objections to the 1982 Convention are leveled solely at 
the treaty provisions that would establish and define an International Seabed 
Authority to oversee mining of the deep seabed beyond national jurisdiction. 
Yet — as President Reagan conceded in his 9 July 1982 statement rejecting the 
treaty — the non-seabed portions of the treaty are more than acceptable to the 
United States. In fact, its provisions on transit passage through international straits 
and on preservation of navigation and overflight freedoms within 200-mile 
offshore zones are quite favorable to the United States as a global naval power. 

So the question arises: is the United States, in rejecting the treaty, tossing out 
the baby with the bathwater, or, in this case, throwing out the sea with the 
seabed? The answer to that question, and to the question of where we go from 
here, might be assisted by an initial inquiry: how did we get into this situation? 
And to approach this question, we need to examine recent trends in the 
international law of the sea and some of the causes for these trends. 

The crucial date is 1945. For approximately 300 years prior to 1945, the world 
ocean was considered (at least by the dominant Western colonial powers) to be 

• Reprinted from the Naval War College Review March- April 1984. 



160 Readings on International Law 

divided into basically two zones: (1) The vast majority of the ocean was deemed 
high seas, where "freedom of the seas" reigned. That is, the high seas were not 
subjectable to any nation's sovereignty. Each nation was free to use the world 
ocean for vessel (and, in this century, aircraft) navigation and its "inexhaustible" 
resources (usually fish) without interference or regulation by any other nation. 
(2) The other zone of ocean space was the territorial sea, a narrow border of ocean 
along the shores of each coastal nation within which that nation could exercise 
a sovereignty almost as absolute as it exercised over its land territory and its 
internal waters. The only real exception to absolute sovereignty was the right of 
every other nation's surface vessels to "innocent passage" through the territorial 
sea. Passage was "innocent" so long as it was not prejudicial to the peace, good 
order, or security of the coastal nation. Until nearly the mid-20th century, 
moreover, the maximum allowable breadth of the territorial sea was generally 
considered to be three nautical miles, as a matter of customary international law. 

This two-zone concept — combining an almost unimaginably large area of 
free-navigation space with narrow areas of innocent passage space — was, of 
course, a very convenient setup for any naval or maritime power. So thought 
the United States in 1945 as it emerged from World War II as the global naval 
power. Unfortunately for the United States and other maritime nations, 1945 is 
the year that the old two-zone setup began to change: the fingers of coastal nation 
sovereignty began to reach seaward. What happened to cause this new develop- 
ment? 

The first thing that happened was that President Truman issued two proclama- 
tions that had been in the works since the early presidential years of Franklin 
Roosevelt. The first Truman Proclamation claimed for the United States 
sovereign rights to the natural resources of the continental shelves adjacent to 
U.S. shores. This meant that the United States was staking a unilateral claim to 
valuable resources, oil and gas in particular, beyond its three-mile territorial sea 
out to an average distance from shore of 40-50 miles. The second Proclamation, 
issued the same day in September of 1945, seemed to assert U.S. regulatory 
authority over fisheries in the high seas beyond the U.S. territorial sea; actually 
it did not do so, but what was important was the perception by others of yet 
another unilateral extraterritorial claim. Both Truman proclamations made a 
special point of reaffirming freedom of high seas navigation in the waters beyond 
the three-mile limit. 

The international response to the claims of the 1945 Truman proclamations, 
especially to the continental shelf claim was extremely favorable: coastal nations 
thought it a good idea, and many followed suit. Others, apparently reasoning 
that there is no good idea that cannot be made better, asserted broader and more 
inclusive jurisdictions over sea and seabed areas off their shores. In 1947, Chile 
made the first claim to a 200-mile resource zone — principally to protect the 
Chilean whaling industry. Also in 1947, Peru asserted what is now viewed as a 



Jacobson 161 

200-mile territorial sea. Other Latin American countries followed the lead of Chile 
and Peru, claiming either 200-mile resource zones or territorial seas out to 200 
miles from shore. Meanwhile, twelve-mile territorial seas and extraterritorial 
fishing zones were becoming increasingly popular around the globe. 

In the midst of this expansionist trend, in the mid-1950s, the UN's Interna- 
tional Law Commission — a group of international law specialists charged with 
the codification and progressive development of international law — began 
preparing draft treaties on the law of the sea. The result: the First United Nations 
Conference on the Law of the Sea (UNCLOS I), held in Geneva in 1958. The 
Conference adopted four new treaties, widely viewed at the time as "codifica- 
tions" or restatements of the customary law of the sea. Figure 1 presents a profile 
view of the basic jurisdictional scheme drawn by that package of treaties. The 
United States is a party to each of the Geneva Conventions of the Law of the 
Sea. Certain aspects of these treaties are significant to the present discussion. 





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The Territorial Sea and Contiguous Zone Convention reaffirmed the concept that 
coastal nations have sovereignty over their territorial seas, subject to the innocent 
passage doctrine. Passage of foreign submarines, however, is not "innocent" 
unless the submarine is on the surface and flying its flag. Furthermore, passage of 
aircraft over the territorial sea is never considered innocent passage. Thus, special 
permission from the territorial sea sovereign is required for overflight or sub- 
merged passage. 

The delegations to UNCLOS I were unable to agree on a maximum breadth 
for the territorial sea. Naval and maritime powers preferred a narrow, three- 
nautical-mile limit in order to allow the greatest degree of mobility for vessels 



162 Readings on International Law 

and aircraft on, under and over the ocean. Coastal nations, emphasizing offshore 
resource management, preferred broader limits. The impasse in 1958 led to the 
Second UN Conference on the Law of the Sea (UNCLOS II), which met in 
Geneva in 1960. Again, the delegations failed, albeit narrowly, to agree on a 
maximum breadth for the territorial sea. The 1958 Convention on the Territorial 
Sea and Contiguous Zone avoids the maximum breadth issue, saying nothing 
at all about it. 

The High Seas Convention, another of the four treaties adopted in Geneva in 
1958, spelled out the "freedoms of the high seas." After defining "high seas" 
essentially as all waters seaward of the territorial sea, the High Seas Convention 
lists four specific high seas freedoms: (1) freedom of vessel navigation (including 
submerged navigation); (2) freedom of overflight; (3) freedom to fish; and (4) 
freedom to lay submarine cables and pipelines. The High Seas Convention makes 
it clear, however, that international law might recognize other high seas freedoms 
in addition to the listed four. The best candidate in 1958 for a "fifth freedom" 
was the freedom of scientific research. The High Seas Convention also contains 
several rules on such matters as flag-state jurisdiction, piracy, etc. 

The Continental Shelf Convention codified the principle sparked by the first 
Truman Proclamation in 1945, that coastal nations had sovereign rights over the 
natural resources of their adjacent continental shelves. However, this treaty also 
reaffirmed that the waters above the continental shelves would not be affected 
and, therefore, such freedoms as navigation and overflight continued to exist in 
high seas above the continental shelves. 

The fourth 1958 Geneva Convention on the Law of the Sea was the 
Convention on Fishing and Conservation of the Living Resources of the High Seas, or 
the Fishing Convention. This treaty was designed both to preserve important 
high seas freedoms and to respond to at least a part of the concern of many coastal 
nations about foreign fishing outside their territorial seas. It provided that, under 
carefully delineated circumstances, a coastal nation could unilaterally adopt 
temporary, nondiscriminatory conservation regulations for endangered fisheries 
in adjacent areas of the high seas, pending agreed-upon or arbitrated international 
conservation rules. Although this treaty was not exactly a failure — it was adopted 
in Geneva by a two-thirds majority and did receive enough ratifications to enter 
into force for those who ratified — it was never a success. First of all, the major 
distant-water fishing nations, such as Japan and the Soviet Union, never became 
parties and were thus never bound. Second, the Fishing Convention did not 
really respond well to all the reasons for the trend toward broader coastal nation 
jurisdiction. 

Through clear hindsight, we can now see that UNCLOS I and II were, in 
many respects, nonsuccesses. The failure of UNCLOS II to establish a 
maximum breadth for the territorial sea was indicative of the more general 
failure of the International Law Commission and the two conferences to 



Jacobson 163 

consider the significance and staying power of the trend toward coastal nation 
expansionism. The 1958 treaties were, as it turned out, too backward-looking. 

In the 1960s an '70s, despite the existence of the Geneva Conventions, the 
trend favoring broader coastal nation jurisdiction continued, and pressures for 
a new oceanic order mounted. The sources of these pressures are several: 

• New ocean technologies have meant that more people have been engaged 
in more new and different activities farther from shore — e.g., drilling for oil and 
gas; fishing in large modern fleets thousands of miles from home and, significantly, 
very close to the shores of other nations; transporting huge quantities of crude 
oil in enormous, thin-skinned tankers that only roughly resemble traditional 
ships. These new- technology-supported activities have caused coastal nations to 
become more aware of the opportunities, controversies, and dangers that were 
developing in their ofBhore waters. 

• Who were these coastal nations? In the wake of global decolonization, they 
were, more and more frequently, new nations, part of the "population boom" 
in the Global Village. They were nations basically poor, with sea boundaries but 
no great global navies, merchant fleets, or distant-water fishing fleets. They were, 
and are, nations of the Third World. 

• These nations have been participants in the quest for a New International 
Economic Order (NIEO), which seeks a redistribution of resources and wealth on 
the planet. This search for a NIEO found coastal nation expansionism — especially 
the claims by poor nations to nearby ocean resources and uses that otherwise 
might be grabbed by the few technologically rich nations — to be consistent with 
NIEO goals. 

• The mid-1960s revelation that the manganese nodules of the deep seabed 
contained such valuable minerals as nickel, cobalt, and copper — together with 
the growing technological capability for their commercial recovery — provided 
the final incentive for a new approach to the international law of the sea. The 
miners needed a security-of-tenure system as a prerequisite to profitable mining, 
and the Third World nations saw an opportunity for an equitable allocation of 
a new source of wealth. 

The call for a new United Nations Conference on the Law of the Sea — the 
third conference — came in the late 1960s and was triggered by a series of General 
Assembly resolutions and declarations. These proclaimed the deep seabed beyond 
nation jurisdiction as "the common heritage of mankind," 12 purported to 
establish a moratorium on seabed mining while a new international conference 
established a mining regime, and set 1973 as the target year for the new 
conference to begin. 

The conference, UNCLOS III, did begin in December 1973, after several 
years of preparatory meetings of a special UN Seabed Committee, and finally 
adopted its new treaty in April 1982. 



164 Readings on International Law 

It has been something to behold! UNCLOS III can justifiably lay claim to 
having been the most significant attempt at truly global cooperation ever. Its task 
was awesome. Three numbers — 150, 85, and 70 — set the challenge: more than 
150 nations (virtually the entire world community) gathered together to address 
85 agenda items, with a view to negotiating a comprehensive set of legal 
principles to govern nearly every aspect of use of 70 percent of the planet's surface. 
Perhaps most astounding of all, the entire set of 85 issues had to be negotiated as 
a package. 

The outcome: a comprehensive, very complex treaty of 440 provisions, 
covering 200 single-spaced pages, resulting — until the April 1982 adoption of 
the final text — entirely from consensus. Not a single vote was taken until the 
vote on the adoption of the treaty as a whole. (Whether the new treaty ever 
becomes binding international law or not, students of international politics and 
diplomacy will be studying UNCLOS Ill's process for decades.) 

Figure 2 shows a cross-section of the new oceanic order embodied in the 1982 
Convention of the Law of the Sea. A comparison of this figure with Figure 1 
will demonstrate that the most striking development in the past 25 years has been 
the recognition of vastly extended coastal-nation competence to regulate and 
affect ocean activities in broad offshore zones. 




Figure 2 



The Exclusive Economic Zone (EEZ) is a new concept, based on the original 
Latin American 200-mile claims. Within its EEZ, each coastal country has, in 
the phrase of the new treaty, "sovereign rights" over all resources, living and 
mineral. It is also allowed extensive jurisdictional authority over scientific 
research and is granted certain controls over marine pollution. The EEZ extends 



Jacobson 165 

beyond the territorial sea to a maximum of 200 nautical miles from shore. Since 

most islands, as well as the continents, can form the bases for EEZs, worldwide 

EEZs will blanket about forty percent of the world ocean. 

But, given the proper geological circumstances, a coastal nation's resource 

jurisdiction can extend even further seaward: the new treaty's legal definition of 

continental shelf covers the entire geological continental margin (with some 

extreme outer limits), which means that some nations will have jurisdiction over 

natural resources of the seabed one hundred or more miles beyond the outer 

edge of the EEZ. However, the 1982 Convention also explicitly guarantees 

freedom of navigation and overflight within EEZs and in the waters above the 

"continental shelf." 

Unlike the 1958 Convention on the Territorial Sea and the Contiguous Zone, 

1 a 
the UNCLOS III treaty does set a maximum breadth for the territorial sea: twelve 

nautical miles. Within this zone, innocent passage (defined at considerable length 

in the new treaty) by foreign vessels is allowed. Again, as in 1958, submerged 

passage and overflight are noninnocent. The impact on maritime nations of these 

rules is crucial. Universal recognition of twelve-mile territorial seas would mean 

that more than 100 straits — several of them such vital chokepoints as Gibraltar 

and Malacca — will be subject to the innocent passage regime; submarines would 

be required to surface -and show their flags and aircraft could not overfly without 

permission of at least one of the states bordering the strait. The 1982 treaty, 

however, recognizes important exceptional rules for straits, including Gibraltar 

and Malacca, that are "used for international navigation." For these straits, the 

treaty would establish transit passage rights for foreign traffic. These rights, which 

the treaty balances against the interests of the strait-bordering nations, would 

include the right of submerged transit and of overflight. 

A similar accommodation of international and local interests was accomplished 
by UNCLOS III for archipelago nations. These States, composed entirely of 
island groupings, prefer to draw baselines around the outer edges of their 
outermost islands and claim the waters thus enclosed as internal waters. The 1982 
Convention creates the concept of archipelagic waters for these areas. The 
archipelagic state will have sovereignty over its enclosed waters, but foreign 
vessels and aircraft will be allowed transit rights (termed the "right of archipelagic 
sealanes passage") nearly identical to the rights of transit passage through straits 
used for international navigation. 

The high seas, shrunken in the 1982 treaty to a mere 60 percent of its early 
20th-century existence, continues to exhibit its traditional characteristics — at 
least in the water column above the seafloor. Beyond the territorial sea, beyond 
the EEZ, beyond the legally defined continental shelf and beneath the planet's 
deep waters, lies The Area. This is the deep seabed beyond national jurisdiction, 
the vast submerged realm that, according to the 1982 Convention of the Law of 
the Sea, is the "common heritage of mankind." The new treaty would establish 



1 66 Readings on International Law 

a virtual government for this realm. It would be known as the International 
Sea-Bed Authority (ISA). Like many governments, the ISA would be composed 
of a sort of legislative branch (the one-nation-one- vote- Assembly), an executive 
branch (the Council, with weighted representation), a judicial branch (the 
Sea-Bed Chamber of the International Tribunal for the Law of the Sea), and a 
bureaucracy. The ISA would also include a controversial operating arm to be 
known as "the Enterprise." 

The primary purpose of the ISA, as envisioned early in the Conference, would 
be management of manganese-nodule mining on the deep seabed. The ISA 
would grant exploratory and production licenses to miners, collect royalties and 
other fees, and make disbursements of revenue to the poorer members of the 
world community, in accordance with the common-heritage principle. 

When President Reagan announced his decision to reject the 1982 
Convention, he cited as the reasons for rejection only aspects of the 
treaty that dealt with the ISA and deep seabed mining. The significant reasons 
for rejection include the following: 

• Access to seabed minerals by private mining companies of the United States 
and other industrialized countries would be hampered by the treaty's so-called 
"parallel system." Each private applicant would be required to submit two mine 
sites of similar value. The ISA would be allowed to choose one of the two sites 
for its "bank" and could allow the private applicant to mine the other site. The 
"banked" mine site would be available for mining by the ISA's operating arm, 
the Enterprise, or by a developing country. The U.S. miners and the Reagan 
administration thus viewed the Enterprise, with some justification, as a favored 
competitor in the fledgling seabed business. 

• To ensure that the Enterprise and any developing-nation miners have the 
necessary technology for mining their shares of the seabed, the 1982 Convention 
would require that private applicants, who have spent years developing seabed 
technology sell their know-how to the ISA on fair terms. This mandatory 
transfer-of-technology provision is especially irksome to the Reagan people. 

• Another galling requirement in the seabed part of the new treaty concerns 
financing the Enterprise's operations. Obviously, even with a promising mine 
site and equipped with seabed technology, the Enterprise will not be able to 
conduct mining operations without sufficient financial backing to cover the 
enormous costs involved (now estimated to be nearly two billion dollars per mine 
site). The new treaty would require that the richer, industrialized nations provide 
loans on easy terms, with each lending nation's obligations proportional to its 
share of the UN budget. Thus, the United States' loan share, at 25 percent, would 
be the highest if the United States were to become a party to the treaty. 

• The 1982 Convention also places production ceilings on seabed minerals, 
another feature the Reagan administration found objectionable. The limits were 



Jacobson 167 

placed in the treaty at the instigation of those countries, mostly of the Third 
World, who are currendy producing the same minerals from land-based sources 
and who thus feel threatened by the prospective seabed competition. As it turned 
out, the negotiations led to very high production limits that do not pose serious 
restrictions on seabed miners; nevertheless, the United States objects in principle 
to production ceilings. 

• Another cited reason for U.S. rejection of the UNCLOS III treaty was the 
failure to guarantee to the United States a seat on the ISA's Council. This was 
especially irritating in light of the treaty's guarantee of three Council seats to 
states from "the Eastern European (Socialist) region," all of whom would 
probably be controlled by the Soviet Union. Actually, a last-minute change in 
the draft treaty led to a provision that now guarantees a Council seat to the "the 
largest consumer [of seabed minerals]," a phrase understood to refer euphemis- 
tically to the United States. 

• One of the most serious U.S. objections to the 1982 treaty concerns 
amendment of the seabed mining provisions. The treaty provides for a Review 
Conference 15 years after the start of commercial operations, and a three-fourths 
majority vote can eventually be used to change the structure of the seabed regime. 
Since the seabed regime could thereby be amended without U.S. concurrence, 
much less with Senate advice and consent, the procedure raises U.S. constitu- 
tional questions in addition to international political questions. A U.S. fear is that 
these amendment procedures will be used in the future to change the "parallel 
system" — in which private miners are granted some access to seabed minerals — to 
an ISA-Enterprise monopoly dominated by Third World interests. Although 
other analysts argue that this fear is exaggerated or unwarranted, it remains a 
primary basis for U.S. rejection of the treaty. 

At base, the Reagan rejection of the 1982 Convention on the Law of the Sea 
rests on ideological underpinnings, principally a fervent belief in the free market 
system. It is felt, with clear justification, that the deep seabed provisions of the 
new treaty not only fail to uphold the free-enterprise philosophy in its rules for 
the seabed mining industry, but are also part of a general Third World, 
NEIO-inspired attack on that philosophy. 

This list of principal U.S. objections to the new treaty — if viewed in isolation 
from the rest of the treaty — clearly demonstrates to many, even most Americans, 
that the treaty is indeed flawed in light of U.S. seabed interests. If, however, the 
treaty is so flawed, so objectionable from a U.S. perspective, we should ask the 
obvious next question: how did we get into this mess? The United States has not 
been standing on the Conference sidelines, gaping in horror as the eventual treaty 
materialized. We have been a primary "mover and shaker" in UNCLOS III. 
What were we doing all this time? 



168 Readings on International Law 

To a large extent, we have been busy creating the very treaty we now reject. 
Let's look at the U.S. record during the emergence of the new law of the 

25 
sea picture. 

1945 — The Truman proclamations on the continental shelf and on fisheries 
(conceived in pre- WWII days but issued at the beginning of U.S. tenure as a 
global naval superpower) instigate, or at least accelerate, coastal nation expan- 
sionism. 

Mid-1960s — The trend toward seaward expansionism of coastal-state 
sovereignty and jurisdiction so concerns the United States as a global ocean power 
that it enters into discussions with the other global naval power — the USSR — on 
what to do about the impending threat to free navigation, especially through 
straits. The two superpowers determine that international agreement with coastal 
nations is the best means to approach the problem. Offshore fisheries jurisdiction 
was to be the trade-off for coastal nations. However, the interest in deep seabed 
minerals enters the picture as a new bargaining chip. 

1970 — President Richard Nixon presents a detailed proposal for an Interna- 
tional Sea-Bed Resource Authority, based on the "common heritage" concept. 
The Nixon proposal is such a generous concession to landlocked and Third 
World states that, had it been accepted and adopted outright, it would have been 
considerably more objectionable to the current U.S. administration. In any 
case, the proposal is rejected by the Third World nations, largely because it is a 
U.S. proposal. Again, the United States is willing at this time to make such a 
large concession in the interest of preserving unrestricted rights of vessel naviga- 
tion and overflight in the face of expanding jurisdictional claims by coastal 
nations. Although the Nixon proposal is rejected, it thereafter provides the 
framework for negotiations on a seabed mining regime. 

1976— By now, UNCLOS III is well under way. Favorable navigation and 
overflight rights, including straits passage rights for aircraft and submerged 
submarines, are part of the package thus far negotiated, but the Conference is 
bogged down on the deep seabed mining regime. Basically, the nations repre- 
senting private miners — the United States and a few other industrialized states — 
want relatively unrestricted access to seabed minerals by private miners. The 
Group of 77, a bloc of about 120 nations of the Third World, prefers a new 
International Sea-Bed Authority that would itself mine the seabed. A third, but 
overlapping group — producers of minerals from land-based sources — want the 
treaty to protect them from competition from seabed minerals. 

Enter Henry Kissinger, U.S. Secretary of State, who wants the Conference to 
move through its seabed-regime impasse and adopt a new treaty so that the 
United States can feel more secure about its crucial national security interest in 
wide freedoms of navigation and overflight. Here is what Secretary Kissinger 
proposes in 1976 at UNCLOS III: 



Jacobson 169 

• A "parallel'* system of mining, whereby private-miner applicants would 
present two substantially identical mine sites to the International Seabed 
Authority. The ISA would keep one for itself, to be mined by its operating arm 
"the Enterprise" or by a developing country. 

• The Enterprise would be financed by loans, with easy terms, from the 
industrialized countries. 

• The developed, industrialized countries and their private miners would be 
encouraged to transfer the necessary technology to the Enterprise and develop- 
ing-State miners. 

• Production limits would be set on behalf of those States whose land-based 
miners would suffer competition from the production of seabed minerals. 

• Periodic review conferences should be held to amend the seabed mining 
regime as necessary or appropriate. 

1976 — (a big year) — over the objections of the United States UNCLOS III 
negotiators, the U.S. Congress finally adopts its own 200-mile zone — limited to 
fisheries management jurisdiction. This is quickly followed by the proclamation 
of a similar Soviet zone and, after a time, by a Japanese 200-mile zone. Many 
other nations also follow suit, thereby solidifying the 200-mile zone concept as 
a. fait accompli of customary international law and depriving the U.S. UNCLOS 
III negotiators of an important bargaining chip. 

1980 — Congress again steps in, this time with the acquiescence of the U.S. 
negotiators, and passes the Deep Seabed Hard Mineral Resources Act. This 
law purports to be interim legislation designed to license U.S. miners to mine 
the deep seabed and to encourage other mining countries (such as Japan, the 
United Kingdom, West Germany, Belgium, the Netherlands, and Italy) to do 
the same and to reciprocate, pending adoption of an UNCLOS treaty. Our 
negotiators acquiesce because the Conference is again deadlocked and it is felt 
that the congressional initiative will get it moving again. It does, and consensus 
agreement on virtually all aspects is achieved in the Conference's 1980 Geneva 
session. One more session in early 1982 is all that is needed to wrap up the few 
remaining details. 

January 1981 — The presidential administration of Ronald Reagan comes to 
Washington. At the instigation of the new president's UNCLOS appointees, the 
Conference is put on hold while the draft treaty is subjected to a year-long policy 
review. When the United States returns to the bargaining table in early 1982, its 
demands that substantive parts of the already-negotiated package be reopened 
and its perceived unwillingness to bend on hardly any point lead to the adoption 
of the new treaty over U.S. objections and its negative vote. 

Thus it is clear that U.S. actions have been, in large measure, responsible for 
the new shape of the international law of the sea, and for the structure of the 
1982 Convention as well. Many of the now-objectionable parts of the new treaty 
began as concessions by U.S. negotiators, who, until 1981, were primarily 



170 Readings on International Law 

concerned with the adverse national security implications inherent in the 
perceived global trend toward inhibiting freedom of ocean navigation and 
overflight. 

The United States does indeed have a national interest in access to seabed 
minerals; it also has an important interest in preserving freedoms of the 
high seas in as broad an area as possible. In fact, the United States has important 
national interests in virtually every aspect of ocean use. It is not only a major 
maritime power, but it is also one of the most important coastal nations and thus 
shares with all coastal nations the interests and concerns regarding use of the seas 
off its coasts. A scorecard that lists all U.S. interests in the seas, one that does not 
focus on the deep seabed regime to the virtual exclusion of other ocean interests, 
shows that the United States would not fare badly at all as a party to the 1982 
treaty: 

• Living and nonliving resources off U.S. coasts are vast and valuable. The 
new treaty's EEZ would confirm U.S. sovereign rights to those resources in the 
largest EEZ space, more than 2.2 million square nautical miles, assigned to any 
single nation. (The recent Presidential Proclamation of a U.S. EEZ attempts to 
lay claim to these resources unilaterally, but other nations assert that the United 
States cannot claim the benefits of the new treaty without becoming a treaty 
party and recognizing the negotiated concessions.) 

• Significant environmental protections are granted by the new treaty to 
coastal nations, and the United States, as a major port state and importer of 
shipborne oil, could benefit a great deal from these. 

• Freedom of navigation and overflight is, for all practical purposes, guaran- 
teed beyond twelve miles everywhere, and rights of passage through international 
straits, including submerged passage and overflight, are allowed even within 
twelve-mile territorial seas. Similar passage rights are also allowed through 
archipelagic sea lanes. 

• Freedom of scientific research, clearly in the U.S. national interest, is 
seriously impeded within EEZs under the 1982 treaty's provisions. Our oceanog- 
raphers, however, generally prefer the treaty to the alternative, which they rightly 
feel will soon be (or is now) a customary law of absolute exclusion. 

• Dispute settlement mechanisms for nearly all types of future ocean con- 
troversies are part of the 1982 treaty, largely due to U.S. efforts. Even the Soviet 
Union, for one of the first times in its negotiating history, went along with the 
consensus of the conference that most ocean law disputes should be submitted 
to compulsory dispute settlement before a special International Tribunal for the 
Law of the Sea, or the International Court of Justice, or an arbitration board. 

• International legal stability would, of course, be enhanced by a successful, 
widely ratified Law of the Sea Treaty, and the United States, with the greatest 



Jacobson 171 

interest in the many uses of the world ocean and as a traditional adherent to the 
rule of law, would benefit from such stability in ocean law. 

• The deep seabed mining regime, the focus of current U.S. objections to the 
treaty, is a minus on any U.S. -interests scoreboard. All the reasons for rejecting 
that regime cited by the Reagan administration are valid. But one might question 
whether these reasons are sufficiently serious that they outweigh the clear 
advantages for the United States in the rest of the treaty. Those who still urge 
the United States to retract its rejection of the treaty point out that, because of 
inflation and the present and projected state of global metals markets, commercial 
seabed mining is not likely to occur until well into the next century. They also 
note that because of UNCLOS Ill's eleventh-hour adoption of a Pioneer 
Investors Protection Resolution (the PIP Resolution), U.S miners and those of 
the other industrialized countries would be likely to enjoy a virtual seabed mining 
monopoly under the new treaty for several decades. 

Despite these arguments and others that emphasize the treaty's net benefits for 
the United States, it probably must be admitted that the United States is 
committed to nonparticipation in the treaty. Certainly the Reagan administration 
is adamant in its rejection. True, a future president could sign the 1982 treaty 
and submit it to the Senate for its advice and consent to ratification. But the 
Senate, which must approve by a two-thirds majority, is considered unlikely to 
consent to ratification. 

So, where do we go from here? The United States still has the whole array of 
national interests and concerns regarding uses of the seas by us and by others. 
How do we protect those interests in the current state of confusion? 

First, we should remind ourselves that the ocean-use problems that instigated 
UNCLOS III still exist and that international rules concerning uses of the sea 
also exist and will continue to develop, in one way or another. By rejecting the 
UNCLOS III treaty, the United States has simply rejected a previously selected 
means for controlling the rule-development. 

Second, we should remember that rules of international law come about in 
essentially two ways: (1) By State practice — the national claims and responses to 
claims and the many other expressions of international practice that reflect 
relatively uniform recognition of proper norms for behavior of nation States — 
which is referred to as customary law. (2) By international agreement, or treaty, 
which creates contractual rules binding only on treaty parties. The international 
legal system recognizes no legislature but sometimes, as in the case of UNCLOS 
III, something like legislation is attempted through the device of a treaty or set 
of treaties. In these instances, broad consensus by those to be governed by the 
rules is obviously necessary for their effectiveness. 

Because of its objections to the 1982 UNCLOS III treaty, the United States 
has determined to upset the broad consensus that had been developing in that 
Conference, to thus cause the new treaty to fail and, presumable, to adopt a new 



172 Readings on International Law 

strategy for controlling the development of ocean law rules. The thrusts of this 
new strategy appear to be twofold: (1) To influence or direct the present 
understanding of customary law and its future course. (2) To enter into discus- 
sions and negotiations with appropriate nations with a view toward achieving 
agreements or understandings favorable to U.S. ocean interests. Let's briefly 
examine some aspects of these two approaches. 

Control of customary law: The United States continues to assert that: The deep 
seabed beyond national jurisdiction is "free high seas" as a matter of customary 
international law; thus, deep seabed minerals are free for the taking by any nation 
which does not bind itself contractually to the 1982 treaty's deep seabed regime. 
(Third World nations, and some others, disagree, relying principally upon the 
UN General Assembly Resolutions declaring the deep seabed the "common 
heritage of mankind" and purporting to impose a ban on mining the seabed 
outside the international system now described in the new treaty.) 

Freedom of navigation and overflight for all vessels and aircraft — including 
military vehicles and submerged submarines — is recognized by custom 
everywhere beyond the territorial sea, even within 200-mile zones. The United 
States will continue to assert this principle by words and deeds. On 10 March 
1983, President Reagan proclaimed an Exclusive Economic Zone for the United 
States and used the occasion also to proclaim, in no uncertain terms, the U.S. 
view that customary international law — as reflected and articulated, but not 
created, in the 1982 treaty — includes the rule of freedom of navigation and 
overflight everywhere seaward of territorial seas. (Some nations, exemplified 
by Brazil, disagree.) 

Rights of transit passage for submerged submarines and for aircraft through 
and over straits, even those blanketed by territorial seas, exist as a matter of 
historical practice, which customary law recognizes and which, again, is articu- 
lated but not established in the UNCLOS III treaty. (Many nations, and not just 
Third World countries, disagree.) 

Similar rights of transit passage are recognized through and over the waters of 
archipelagic states. (Some nations disagree.) 

Discussions and negotiations: While it tries to affect customary law trends, the 
United States will also continue to conduct talks and negotiations with other 
states regarding various American ocean interests. 

As to deep seabed mining, the United States is not only attempting to ensure 
that the 1982 treaty fails, but that the mining nations enter into their own 
"mini-treaty" to establish a deep seabed mining regime more compatible with 
free enterprise precepts. Since several of these mining nations have signed (but 
not yet ratified) the 1982 Convention, chances for U.S. success in this venture 
remain questionable. 



Jacobson 173 

As to the other major U.S. ocean interest — navigation and overflight — the 
United States is trying to achieve understandings with such important straits states 
as Spain and Indonesia (also an archipelagic state) concerning U.S. positions on 
customary law and on rights of passage. 

Other U.S. interests will be pursued along similar paths, although it appears 
likely that, for these interests, the United States will be careful to make sure its 
positions track the 1982 treaty's provisions as closely as possible. Thus, for 
example, the President's EEZ proclamation and its accompanying policy state- 
ment indicate that the United States will abide by assertions of jurisdiction over 
scientific research by other nations in the EEZs, if such jurisdictional claims 
comply with the "customary" rules articulated in the UNCLOS III treaty. 

What does all this confusion and maneuvering mean for the Navy? First of 
all, it should be apparent that "freedom of the high seas" — an international-law 
citadel that has stood for centuries — is under siege. In the absence of the 1982 
treaty, or something like it, the 200-mile zone concept is likely to continue to 
evolve in directions that will impose further restrictions on navigation and 
overflight, and this will be especially true for military vessels and aircraft. The 
simple fact is that most nations are coastal nations who have no global navies and 
therefore no perceived interest in keeping their offshore waters free for passage 
and military maneuvers by superpower forces. Indeed, the 200-mile "barrier" 
could soon be breached. 

Passage through straits less than 24 miles wide (i.e., those covered by one or 
more nations' twelve-mile territorial seas) could be increasingly hampered by 
legal objections of the straits States and by others anxious to make sure that the 
United States, in remaining outside the 1982 treaty, is deprived of the "benefits" 
of the UNCLOS III package deal. Similar challenges could meet American 
attempts to exercise transit passage rights through and over archipelagic waters. 

Second, the defense of the free-seas citadel could be costly in several ways. 
Costs of achieving understandings or agreements with other nations could be 
significant. For example, it is not unlikely that Spain will place U.S. overtures 
regarding passage through the Strait of Gibraltar in a package with U.S. concerns 
on Spain's relationship to NATO and the renegotiation of U.S. bases agreements. 

The United States could, of course, play the tough guy and simply go it 
alone — do what it wants to do anywhere in the ocean — without obtaining the 
consent of other affected and objecting nations. This approach, however, could 
be costly in several ways: 

• It could mean incurring the ill will of allies, friends and nonaligneds. 

• It would certainly further alienate Third World nations. 

• It could precipitate an acceleration of the pendulum swing toward further 
coastal nation expansionism, making the job that much more difficult. 



174 Readings on International Law 

• It would mean taking military risks — for example, in challenging assertions 
of coastal-nation restrictions on offshore naval movement, or in protecting U.S. 
seabed miners. 

• There would certainly be legal challenges in the International Court of 
Justice. 

The impact of these uncertainties will fall, in the first instance, on those charged 
with planning the movement of military ships and aircraft on, under, and over 
the sea. There will be added political and, perhaps, military risks in, e.g., sending 
aircraft or submerged submarines through straits bordered by one or more states 
that object to such passage on a legal ground or in carrying out maneuvers within 
200 nautical miles of those coastal nations who might challenge freedom of 
navigation in their EEZs. While these risks will, in some cases, suggest that 
alternative routes or sea areas be selected, in other cases the planners might well 
decide to challenge the assertions of illegality by doing just the opposite: that is, 
by sending ships and aircraft into the disputed areas to prevent the perception of 
acquiescence in the claims of the coastal States. 

For the officers on the bridges and in the cockpits, the present and future 
uncertainties concerning the military uses of the seas will translate into a 
somewhat greater risk of challenge and confrontation in disputed straits, ar- 
chipelagic waters, and EEZs. These officers, as representatives of the U.S. 
Government, will be on the cutting edge of the further development of ocean 
law rules. Their missions should be carefully planned and executed so that, in 
concert with ongoing diplomatic efforts, their actions will help to ensure that 
the broadest possible freedom of ocean navigation and overflight will continue 
to be part of the fabric of the international law of the sea for decades to come. 



Professor Jacobson was on the School of Law faculty, University of Oregon when this article 
was first published. Additionally, he held the Charles H. Stockton Chair of International Law at 
the Naval War College for the 1982-83 academic year. 



Notes 

1. United Nations Convention on the Law of the Sea, opened for signature at Montego Bay, Jamaica, 
on 10 December 1982, U.N. Doc. A/CONF. 62/122(1982) [hereinafter cited as 1982 Convention]. 

2. Department of State Bulletin, August 1982, p. 71. 

3. Proclamation No. 2667, 10 Fed. Reg. 12, 303 (1945). 

4. Proclamation No. 2668, 10 Fed. Reg. 12, 304 (1945). 

5. Convention on the Territorial Sea and the Contiguous Zone, 29 April 1958, 15 U.S.T. 1606, T.I.A.S. 
No. 5639, 516 U.N.T.S. 205. 

6. The "contiguous zone" to which the treaty's tide refers is a zone of special jurisdiction beyond a coastal 
State's territorial sea. Article 24, in the zone, the coastal State is authorized to prevent and punish violation of 
its regulations concerning customs, immigrations, fiscal matters, and sanitary measures. The maximum limit 
for the contiguous zone is twelve nautical miles from shore. 



Jacobson 175 

7. The Territorial Sea and Contiguous Zone Convention also includes several complex provisions on 
establishing baselines from which the territorial sea and other zones are measured and rules for setting boundaries 
between the seas of opposite and adjacent States. 

8. Convention on the High Seas, 29 April 1958, 13 U.S.T. 2312, T.I.A.S. No. 5200, 450 U.N.T.S. 82. 

9. Convention on the Continental Shelf, 29 April 1958, 15 U.S.T. 471, T.I.A.S. No. 5578, 499 U.N.T.S. 
311. 

10. See North Sea Continental Shelf Cases, [1969] I.C.J. 4, 23. 

11. 29 April 1958, 17 U.S.T. 138, T.I.A.S. No. 5959, 559 U.N.T.S. 285. 

12. G.A. Res. 2749, 25 U.N. GAOR Supp. (No. 28), at 24, U.N. Doc. A/8028 (1970). 

13. G.A. Res. 2574D, 24 U.N. GAOR Supp. (No. 30), at 11, U.N. Doc. A/7630 (1969). 

14. G.A. Res. 2750C, 25 GAOR Supp. (No. 28), at 26, U.N. Doc. A/8028 (1970). 

15. Although the official agenda of the Third Conference lists only 25 major items, the major items are 
further subdivided. The total number of items thus listed is approximately 85. 

16. See arts. 55-75 of the 1982 Convention. 

17. See arts. 76-85 of the 1982 Convention. 

18. See arts. 2-32 of the 1982 Convention. 

19. See arts. 34-45 of the 1982 Convention. 

20. See arts. 46-54 of the 1982 Convention. 

21. See arts. 133-191 of the 1982 Convention and Annexes III & IV. 

22. The 1982 Convention, an extraordinarily complete document, also contains detailed provisions on 
several topics not mentioned in the text of the article — e.g., marine pollution, scientific research at sea, the 
status of islands, marine mammals, access by landlocked nations, settlement of ocean disputes, etc. 

23. The United States also charges that the common-heritage proceeds of seabed mining might be 
distributed to such objectionable recipients as the PLO and other national liberation groups. 

24. The counterargument points out that U.S. companies frequently put up with even more restrictive, 
antifree enterprise schemes in resource-extraction deal with Third World countries. See Katz, A Method for 
Evaluating the Deep Seabed Mining Provisions of the Law of the Sea Treaty, Yale J. World Pub Order 114 (1980). 

25. The historical record is set forth with great clarity in HOLLICK, UNITED STATES FOREIGN POLICY 
AND THE LAW OF THE SEA (1981). 

26. For example, the Nixon proposal would have designated all seabed space seaward of the 200-meter 
isobath (depth line) as common heritage space. See Comment, The Nixon Proposal for an International Seabed 
Authority, 50 Or. L. Rev. 599 (1971). 

27. Fishery Conservation and Management Act of 1976, 16 U.S. C. §1801-1802. 

28. But arguably only for the common-core assertion of fisheries management jurisdiction. 

29. U.S.C. §1401-1473. 

30. Ratiner, The Law of the Sea: A Crossroads for American Foreign Policy, Foreign Affairs 1006 (Summer 
1982). 

31. Proclamation 5030, 48 Fed. Reg. 10,605 (Mar. 14, 1983). A policy statement by the President 
accompanied the EEZ Proclamation and can be found in Weekly Comp. Pres. Docs., 14 March 1983, at 383. 

32. See Wooster, Research in Troubled Waters: U.S. Research Vessel Clearance Experience, 1972-1978, in 
Science, Technology, and Ocean Development, 9 Ocean Dev. Int'l L. 219 (Jacobson ed. 1981). 

33. Supra n. 31. 

34. Ambassador Thompson Flores of Brazil recently stated that, according to his country's interpretation, 
the 1982 Convention on the Law of the Sea [does] not authorize other States to carry out military maneuvers 
within the exclusive economic zone, particularly when these activities involve the use of weapons or explosives, 
without the prior knowledge and consent of the coastal State." 

35. Supra n. 31. 



Chapter 1 3 

A Framework for Small Navy Theory: 
The 1982 U.N. Law of the Sea Convention* 



Nien-Tsu Alfred Hu and James K. Oliver 

Most existing naval theory has been developed and written by naval 
practitioners and scholars from the perspective of major or global naval 
powers and deals with large navies. In the last decade the emphasis of this 
literature has shifted from concern with warfighting missions to the political use 
of navies. Moreover, such analysis has inevitably focused more upon the exercise 
of global presence by navies and thus their political, military, and diplomatic uses 
within a global context. This perspective is of limited use for most navies in the 
world. Smaller navies are limited in their operating areas and geographic reach 
and, therefore, cannot seriously consider global tasks or missions. They need a 
naval theory derived from their own perspective, and with the advent of the new 
ocean regime after 1982, this need has become even more pressing. 

The new accretion of immense maritime zones bestows tangible and intan- 
gible interests upon a coastal State. These include the acquisition of living and 
nonliving resources and the legitimate control of maritime activities under 
national jurisdiction within the zones. In addition, these newly acquired maritime 
interests expand significantly a coastal State's sense of national interests. Clearly, 
navies will play a major role in upholding and protecting these national maritime 
interests. Nevertheless, these forces face a new context in which political, 
diplomatic, and legal emphases outweigh the conventional warfighting role in 
terms of naval planning and policymaking. This situation manifests the under- 
development of naval theory vis-a-vis small navies in general, and the role of 
navies in fisheries and other maritime resources issues in particular. 

What would be useful, and what this paper seeks to provide, is a theoretical 
framework — based on the 1982 United Nations Convention on the Law of the 
Sea (1982 LOS Convention) — which provides small navy planners with a clear 
objective in formulating a State's naval policy. Such a framework will provide 
naval planners with a rationale for the protection of all national maritime interests 
within the national 200-mile exclusive economic zone and, at the same time, 
furnish national maritime policymakers with an understanding of the importance 
and necessity of including naval forces in their plans. 

• Reprinted from the Naval War College Review Spring 1988. 



178 Readings on International Law 

Classification of Naval Powers 

Limits of Measuring Power by Aggregated Physical Resources. Almost a decade ago, 
David Baldwin, summarizing a long and rich literature in political science and 
international relations, cogendy critiqued the measurement of power in terms of 
capability inventories. Among military and naval analysts, Robert Art, Ken Booth, 
and James Cable have emphasized the necessity of thinking of power in terms of 
political and military objectives achieved rather than aggregates of capability. 

Mark Janis provides a good example of this classifying of naval powers/naval 
forces in his Sea Power and the Law of the Sea. Here Janis categorizes all the world's 
navies into five different classes, using data in Jane's Fighting Ships 1974-1975. 
The first class of navies are those of the United States and the Soviet Union, and 
the second class includes Great Britain and France. These four navies are 
categorized as "major, blue water, SSBN navies." The remaining navies of the 
world are grouped together as "coastal navies," wherein another three classes are 
distinguished. Twenty-one third-class navies are counted, having more than ten 
major surface combatants (cruisers, destroyers, and frigates), usually some sub- 
marines, and occasionally between 80 and 250 vessels in all. Next are 29 
fourth-class navies which have at least one, but no more than ten major surface 
combatants, no aircraft carriers, rarely a cruiser, and number about 50 vessels in 
all. Seventy-two fifth-class navies have no major surface combatants and rarely 
more than a dozen vessels overall. 

Janis' ship-counting scheme offers an interesting picture of the striking 
diversity of navies in terms of their physical assets and shows that a majority of 
the navies in the world are coastal navies as defined by Janis. It tells us nothing, 
however, regarding the actualized power associated with these navies in the 
context of international disputes. The implicit analytical weakness of this ap- 
proach is evident since the potential power of a navy does not always correspond 
to actual outcomes of disputes involving the application of naval power. For 
example, in the major international fisheries disputes involving the use of naval 
forces since World War II, those States successfully asserting their maritime rights 
and protecting their national fisheries interests were usually those ranked as 
"lower-class" navies. 

Rear Admiral J. R. Hill recognizes these problems: "power is a diverse, 
sometimes ill-defined, often unquantifiable thing" and "the search for classes or 
categories of power is most unlikely to end in a statistical table." However, since 
it is not entirely illogical to begin with one, Hill goes on to classify states into 
superpowers, medium powers, and small powers, using indicators such as 
population, gross domestic product, per capita income, exports, men under arms, 
armies, major warships, combat aircraft, and defense budgets. Hill then discusses 
the components of maritime power, i.e., trade and access, shipbuilding, exploita- 
tion of natural resources (fish catch), and military power at sea. He further tries 



Hu and Oliver 179 

to quantify the sea dependence of a State by employing these maritime power 
components/factors in equation to generate a rating for sea dependence. After 
going through all these complexities, Hill ends up, however, with no clear 
definition for medium maritime powers other than those powers that lie between 
the self-sufficient and the insufficient. 

Both Janis and Hill's efforts vindicate Cable's observation that measuring 
power by the aggregation of resources tells us little about the essence of power. 
The central weakness of these approaches, then, is that they more often than not 
classify navies/naval powers using quantitative or descriptive terminologies 
which convey little basis for the assessment of actualized naval power in a political 
context. For example, Janis' "coastal navies" include three different classes. In 
reality, some of these navies possess power projection capabilities. However, the 
term "coastal" suggests they are tightly attached to their coastlines with minimal 
projection capabilities. In addition, Hill's classification of "super," "medium," 
and "small maritime powers" suggests that upper-class powers can readily defeat 
lower-class powers. However, the outcome of the major fisheries disputes of the 
postwar era demonstrates that this common sense impression does not stand up 
under examination. 

A different approach is therefore needed in order to understand naval power 
across the full spectrum of the world's navies. This new approach can be termed 
a "functional analysis" — i.e., understanding the nature of different naval powers 
from the scope of the functions which they have the capacity to attain. Ken 
Booth has argued for the advantages of taking such a functional or mission 
approach: 

• Concentration on policy objectives should encourage the rational selection 
of the resources to be allocated to naval force. 

• A mission approach should help [with] the problem of establishing tactical 
and financial priorities. 

• It should assist the optimum selection of weapons systems. 

• It should ensure that the members of a navy focus on the whole rather than 
on one of its parts. 

• Finally, by clarifying why navies might exist for any particular country, one 
can discuss more sensibly the array of strategies and tactics they adopt. 

Booth also argues that before asking "What is their naval strategy?" one should 
ask, "What is their interest in the use of the sea?" 8 By the same token, the 
competence and power of a navy should not be judged simply by its physical 
capability, i.e., the size or the weaponry. Rather, they should be scaled against 
the context in which a navy is operating. In other words, if a navy is able to fulfill 
and meet the functional needs required by the environment or circumstance in 
which it serves, it is a powerful navy regardless of its physical size. 



180 Readings on International Law 

Functional Classification of Naval Powers. Ken Booth conceives three basic 
functions that navies can perform — diplomatic, policing, and military. Booth also 
details the main aims and subsidiary policy objectives of these three functions. In 
terms of geographic reach, Booth further divides navies into four categories: 
coastal, contiguous-sea, oceangoing, and global navies. This classification of 
navies could be viewed as a kind of coding for naval power. A State having 
so-called global interests needs a global navy, with capability for naval presence 
and projection of power, to define and to defend those national interests. 
Otherwise, a State will merely require a navy that is capable of meeting a set of 
relatively limited national interests in a limited area. Moreover, clearly defined 
national interests allow a state to have better visualization for the purposes of its 
naval planning and naval strategy. With Booth's characterization of navies in 
mind, the relationship between naval power and naval functions can be con- 
ceived as correlated. In other words, there should be a correlation between the 
physical capabilities, the reach of the navies, and their functions. 

Perhaps the most vital missions for most small-navy States are the basic policing 
function, a portion of the military function, and/or a portion of the diplomatic 
function. The basic policing function includes the missions of the coast guard of 
national sovereignty, resource enjoyment within the exclusive economic zone 
(EEZ), and maintenance of good order in these waters as well as contributing to 
internal stability and development. Performance of a military and/or diplomatic 
function by small navies is, however, heavily dependent on naval hardware 
capability, the political volition of the coastal navy States, and the perception of 
the political leaders of the object States. Thus, the diplomatic function represents 
the threshold that separates oceangoing and global navies from the contiguous-sea 
and coastal navies. A navy that can effectively perform more missions than 
policing, conventional deterrence and defense, and the diplomatic functions must 
have capability beyond that of contiguous-sea and coastal navies. Therefore, a 
small navy can be a contiguous-sea navy or a coastal navy as defined by Booth. 
The term "small," however, does not imply a navy's weakness or inferiority 
compared to an oceangoing or a global navy. Rather, the power or competence 
of a navy must be judged contextually. 

An oceangoing navy, as defined by Booth according to the criterion of physical 
reach, may be equated to Hill's medium-power navy, which has "interests 
generally extending] far beyond the 200-mile limit of the economic zone." 
Booth's global navies may also be equated to Hill's superpower navies since they 
characteristically enjoy the capability of global deployment. Booth states that 
most navies of the world, about 60 percent, fall into the category of contiguous- 
sea navies while another 35 percent are coastal navies. These navies have the 
capability to execute the conventional deterrence and defense missions which 
include: preparing for wartime tasks, deterring hostile intrusion across maritime 
frontiers, contributing to local maritime stability, protecting national claims in 



Hu and Oliver 181 

contiguous seas, and extending national claims in contiguous seas, along with a 
certain portion of the diplomatic mission which includes negotiating from 
strength, manipulating situations and atmosphere, and demonstrating national 
prestige. 

With this functional approach small navies can, therefore, be tentatively 
defined as those navies that are capable of performing a part or all of the policing, 
conventional deterrence and defense functions, as well as some degree of naval 
diplomatic functions with limited geographical and maneuvering reach within 
coastal and/or contiguous-sea waters. It will be shown below that these functions 
are precisely those required by the 1982 LOS Convention for a coastal State to 
protect its national maritime interests within its 200-mile exclusive economic 
zone. Of course, this definition of small navies, based on the correlation between 
naval power and naval functions, has its own conceptual limitation — a limitation 
deriving from the advances of contemporary technology. Nevertheless, the value 
of this definition is that it conceptually ties the physical capabilities of a navy with 
the potential functions it might perform. 

The 1982 LOS Convention and the Uses of Naval Forces 

Since the Third United Nations Conferences on the Law of the Sea convened 
in 1973, scholars have argued endlessly about the nature of the 200-mile exclusive 
economic zone — one of the most profound new elements formulated and 
incorporated in the resulting Convention. 

D. P. O'Connell noted that "the EEZ is essentially an area of high seas which 
has now become subject to certain limited jurisdictional rights 'which are in the 
nature of police rights rather than sovereignty* . . . [and] the EEZ is 'high seas, 
and superimposed on that you have certain coastal State rights with respect to 
[the] enjoyment and protection of marine resources' . . . the residual character 
of the EEZ is high seas." While arguing that "the EEZ concept has been 
appropriately described as 'a zone sui generis, since it is neither high sea nor 
territorial sea as normally understood," Booth views the EEZ as possessing the 
"emerging character of territorial sea" and characterizes the legal and practical 
evolution of the EEZ concept as "creeping jurisdiction," "ocean enclosure 
movement," or "territorialization." 

Some argue that 32 percent of the world's oceans falling into national 
jurisdiction due to the EEZ establishment will inevitably confine the 
maneuverability of global navies and, thus, their strategic and diplomatic mis- 
sions. Booth, on the other hand, argues that this restriction arising from the 
law of the sea regime is only a necessary, not a sufficient, condition for a more 
strained maritime environment for global navies. He further claims that global 
navy States, more often than not, enjoy a stronger position, both diplomatically 
and politically, over other coastal states; moreover, the "psycho-legal" boundaries 



182 Readings on International Law 

of EEZs may prove beneficial to naval powers exercising naval diplomacy. 
Regardless of the pros and cons, the 1982 LOS Convention does force all coastal 
States, both maritime powers and others, to rethink their naval forces and the 
roles and missions the navies will play as well as the interaction and implications 
of naval planning with other national policies and postures. 

From the perspective of global naval powers, Booth feels that "the 1982 
Convention imposes no interference on military activities in EEZs" and "naval 
diplomacy would not in fact come to an end: it would only become more 

1 ft 

complicated." But he also warns that "apprehension is justified in the longer 
term" if the sense of territoriality among coastal States grows towards their EEZs, 
and this sense is expressed in demands for greater control over foreign shipping, 
including naval vessels, accompanied with demonstrations of political and 
military muscle. Booth's warning or apprehension is clearly supported by 
analyses of fisheries disputes both before and after the 1982 LOS Convention. 
These disputes reflect a growing sense of property rights over the natural 
resources within the EEZ and a nationalistic view of the protection of EEZs. 

To most small-navy States, however, the new rights and the resulting 
responsibilities over immense ocean areas and the natural resources deriving from 
the 1982 LOS Convention have not only created new tasks and requirements 
but also sensitized them to the need and/or perception of protecting their newly 
accrued territory and property. "Governments will have to show that they intend 
to defend their rights in what they regard as their own patches of sea, if not 
beyond, and there is no more effective way of doing this than by deploying 
warships. Warships are gadgets of sovereignty." The functions or missions of 
warships in relation to the law of the sea include: new EEZs to be patrolled, good 
order to be maintained, and badge of maritime sovereignty to be displayed. For 
global navies or naval powers, the effect of the 1982 LOS Convention might 
mean only a change of emphasis as argued by Booth. To small navies, however, 
these functions or missions can well be new in both a conceptual and physical 
sense. While global navies are familiar with highly political exercises in sensitive 
foreign waters and the possible diplomatic implications these exercises carry, a 
small-navy State may find it very uncomfortable or even difficult to contemplate 
and plan a naval maneuver in its own waters so as to perform a constabulary 
mission and also send a political message to potential foreign intruders. The force 
structure of a small-navy State might not be capable of performing the kind of 
mission its political leaders contemplate. Or, the small-navy State may not have 
the right combination of forces to conduct certain delicate missions in its waters 
when the situation requires. 

The new ocean regime definitely gives coastal States some benefits in both 
economic and political forms. It also brings the coastal States new tasks and 
requirements that cannot be fulfilled or met simply by a change of priority or 
emphasis. To most coastal States, this means the refit or overhaul of their existing 



Hu and Oliver 183 

philosophy and attitude towards their navies and naval planning. Small-navy 
States have to rethink the relationship of their naval maneuvers and their political, 
diplomatic, economic, and marine-legal effects. Thus, although these navies 
might be small in a physical and material sense, their political effects may become 
quite large within their EEZs. 

Small Navies in the Context of 1 982 LOS Convention 

In a recent review of Ken Booth's Law, Force and Diplomacy at Sea, James 
Cable's Diplomacy at Sea, and Rear Admiral J. R. Hill's Maritime Strategy for 
Medium Powers, Donald C. Watt wrote: "They have learnt from reflecting on 
the course of events since 1965 that low-level conflicts, or as Admiral Hill calls 
them 'low intensity' conflicts, are the norm and a nuclear conflict at sea the 
exception. This has led them to argue that concentration on the possible role of 
navies in the ultimate Armageddon is a grave misuse of time and introduces a 
great distortion into the course of naval policy and naval construction. Secondly, 
they all wrote before the conjunction of Mr. Knott's defence budget and the 
Falkland/Malvinas conflict provided graphic support for their arguments of the 
near folly of the dominant Ministry of Defence doctrine. . . . Thirdly, all have 
written under the shadow of the ten-year long International Conference on the 
Law of the Sea and the 1982 Convention which concluded it. This convention, 
in part at least, updated, for the years of guided ship-to-ship or air-to-sea missiles, 
a doctrine of national sovereignty at sea which was outdated in the mid- 19th 
century with the disappearance from naval warfare of muzzle-loading cannon 
firing solid shot. But it came on a wave of concern about the living and non-living 
resources of the sea which took its origins with President Truman's 1945 
proclamation on the mineral and fisheries resources of the U.S. Continental 
Shelf." 23 

Preparation for nuclear or subnuclear all-out war is simply inappropriate 
planning for most small navies; near or low-intensity conflicts resulting from 
contention surrounding national maritime zones and/or maritime interests are 
the essence of day-to-day maritime politics. Post- Wo rid War II fisheries conflicts 
between the United States and Latin American States, Britain and Iceland, 
Argentina and Britain, Argentina and the Republic of China (ROC), and the 
ROC and the Philippines, all verify this conclusion. With the codification of the 
12-mile territorial sea and the 200-mile EEZ in the 1982 LOS Convention and 
the introduction of new naval weaponry, coastal States with small navies now 
have not only the legitimate incentive but can possess the physical capability to 
uphold their national rights or sovereignty at sea. 

The late Robert E. Osgood identified six new sources of conflict arising in 
this new ocean politics era. They include disputes over economic zones, maritime 
boundaries delimitation, straits passage, national security measures in maritime 



184 Readings on International Law 

zones, superpower naval interests in certain waters, and utilization of the deep 
seabed. Barry Buzan has done a thorough study of the same issue with two 
different approaches: one legal and technical and the other from a geographical 
or regional perspective. From the legal point of view, Buzan classifies the sources 
of dispute as contention over: national boundaries, rights within national boun- 
daries, rights in the ocean beyond national jurisdiction, and disputes arising from 
non-ocean sources. An international maritime dispute can also stem from 
several sources, which is indicative of why these disputes are often so complicated 
and difficult to resolve. For example, the Sino-Philippine dispute that has 
stretched over the last ten or more years deals with contentious issues over 
delimitation of mutually exclusive boundaries, rights pertaining to islands, 
delimitation of the outer limits of national jurisdiction, fishing, and nonmilitary 
navigation. The Sino- Argentine incident of 1986 was the result of a tripartite 
contention over ownership or rights pertaining to islands, fishing, and rights in 

27 

the ocean beyond national jurisdiction. 

Although these sources of conflict, by their nature, are by no means new to 
many coastal States, the new ocean regime has undoubtedly intensified them by 
legalizing and enshrining coastal States' national rights in a detailed and com- 
prehensive international treaty. When looking into the sources of these disputes, 
we should not lose sight of the fact that the roots of disputes or conflicts are the 
different national views and interpretations of the same clauses and phrases 
written in the Convention which give states the rights they hold dear. Thus, the 
same national rights enshrined in the Convention can be the sources of interna- 
tional disputes on the one hand while also serving as guidelines for both naval 
development and constraints on naval operations. The Convention, in short, 
provides not only the possible sources of disputes and conflicts arising from it, 
but also the context within which a navy performs its duties to uphold and protect 
national rights. 

The codification of the 1982 LOS Convention stemmed from the presump- 
tion that "with due regard for the sovereignty of all States, a legal order for the 
seas and oceans which will facilitate international communication, and will 
promote the peaceful uses of the seas and oceans, the equitable and efficient 
utilization of their resources, the conservation of their living resources, and the 
study, protection and preservation of the marine environment" would be 
established. Thus the Convention emerges as a multi-purpose treaty con- 
centrating on all human uses of the seas and oceans. However, national 
sovereignty is still the bottom line. Thus, "peace, good order or security of the 
coastal States," 29 "[to] refrain from any threat or use of force against the 
sovereignty, territorial integrity or political independence of States,"* and "the 
protection of its [coastal State's] security" are the dicta for all ocean-user States. 

Most coastal States do not have the capability to explore or utilize the resources 
in situ in the Area, or the seabed and ocean floor and subsoil beyond the limits 



Hu and Oliver 185 

of national jurisdiction. For this majority of coastal States, therefore, attention 
will thus, naturally, focus on the seas within the 200-mile EEZ where it is more 
likely for them to contemplate the enjoyment of national sovereignty as well as 
the natural resources therein. The rights, jurisdiction, and duties of coastal States 
within these 200-mile limits constitute the essence of the national maritime 
interests that coastal States should attempt to maximize or optimize. It follows 
that coastal States can plan their naval forces according to the rights, jurisdiction, 
and duties established in the Convention for the upholding and protection of 
their national rights within the 200-mile limit waters. 

A Definition of Small Navies and Their Functions 

The governmental practice and enforcement of these legislative and jurisdic- 
tional rights falls on the coastal State's naval force. Basically, this is a constabulary 
task to make sure that foreign ships within these waters comply with all the laws 
and regulations of the coastal State for the maintenance of peace, good order and 
security, for the enjoyment of its own natural resources, and for the protection 
of sovereignty — a task defined by Ken Booth as a policing function for the coast 
guard responsibilities and nation-building. A navy for this constabulary task needs 
a convincing physical capability to deter misbehavior of foreign ships and to arrest 
them if necessary. The conventional deterrence and defense function of a navy 
as defined by Booth is: to prepare for wartime tasks, to deter hostile intrusion 
into maritime frontiers, to contribute to local maritime stability, to protect 
national claims in contiguous seas, and to extend national claims in contiguous 
seas. Since the enforcement of national rights is, by its nature, against foreign 
activities within national (economic) waters, it is, therefore, inevitably, involved 
with international relations and diplomacy. 

Such activities are also undertaken for political and diplomatic purposes, such 
as to improve bargaining strength, to threaten force from the sea to support 
policy, to improve one's ability to affect the course of specific diplomatic 
negotiations, or to create some kind of national prestige at home and abroad. 
This diplomatic function has been generally and mistakenly regarded to be a 
minor or indistinct role for small navies. The traditional sense of naval diplomacy 
involves the use of warships in support of a State's general bargaining position, 
particular negotiating stances and influence-building tactics, as well as repre- 
sentational tasks of various kinds. Both in conventional wisdom and in practice, 
this implies and entails the application of naval forces at great distance; a function 
beyond the capability of small navies. However, inasmuch as these naval functions 
are linked to the provisions of the 1982 LOS Convention, small navies are now 
placed into a new context in terms of naval diplomacy — new in the sense that 
the application of naval forces and the implementation of diplomatic functions 



186 Readings on International Law 

occur within a geographically limited and specific area: the 200-mile national 
(economic) waters. Thus a small navy can now be defined as: 

a navy which is primarily designed, planned, prepared, and constructed to protect and enforce 
the national rights, as conferred by the 1982 United Nations Law of the Sea Convention, 
within the 200-mile limit national (economic) waters. 

Insofar as a coastal State's national rights within its 200-mile waters becomes 
the baseline for the design, planning, preparation, and construction of its navy, 
the notion of a small navy takes on greater functional specificity. When a coastal 
State contemplates a navy that will be obligated not only to fulfill the needs and 
requirements of national rights, jurisdiction, and duties of the coastal State within 
the 200-mile limits as stipulated by the 1982 LOS Convention, but also to extend 
its force beyond the 200-mile limits, then an oceangoing navy is required. The 
British Navy is a good example of such an oceangoing navy. It does not have 
the capability to deploy its force globally or readily deal with two or more crises 
simultaneously, however, it can cope with a single contingency beyond its 
200-mile waters. The Anglo- Argentine Falklands war of 1982 best characterizes 
the nature and capability of such an oceangoing navy. If, however, a coastal State 
intends to deploy its navy globally to protect simultaneously its many global 
interests, it asks for a global navy, e.g., the U.S. Navy or the Soviet Navy. 

With this functionally oriented definition or classification of navies, navy 
planners and governmental policymakers will have a clear picture in mind of 
what to look for as guidelines and how to plan a navy their State really needs in 
support of their national rights within the 200-mile limits of ocean territory. This 
small-navy theory provides naval theorists with a conceptual standard or criterion 
to qualify and compare different navies without the confusion and ambiguity that 
previously plagued these analyses. 

The definition of a small navy has been conceptually derived from the 
interrelationship of naval functions and naval powers. The categorization 
of naval powers, in turn, has been based upon the physical capacity of navies, 
i.e., naval reach, a term defined by Rear Admiral J. R. Hill "as the distance from 
home bases at which [naval] operations can be carried out."" Insofar as the scope 
and character of naval operations can be defined, combined with the recognition 
of naval reach capability, the functions or missions that a navy can contemplate 
and fulfill will be clearly specified. One can, thus, apprehend the appropriate 
planning and force structure for a navy. Moreover, such conceptual clarification 
or specification allows for a more objective evaluation of naval power and its 
utility. That is, one is no longer constrained by vague notions of power based 
upon ship counting or force structure description. 

Small navies are, therefore, defined as those navies operating primarily within 
a reach of 200-miles, or within national EEZ limits. Accordingly, the functions 



Hu and Oliver 187 

of small navies can be confined by and so defined within the context of the 1982 
United Nations Law of the Sea Convention. The national rights codified within 
the Convention and conferred upon the coastal States can be used as guidelines 
for political leaders and naval planners alike to design, plan, prepare, and construct 
their navies. Theoretically and analytically, this approach offers a clear framework 
since it is built upon two practical and tangible elements: the physical capacity 
or reach of the navy and a written international treaty. Political objectives and 
military planning are consolidated and orchestrated toward the same purpose — 
the upholding and protection of national (maritime) interests within the 200-mile 
limits of ocean territory. 



Dr. Hu was a fellow of the East- West Center at Honolulu, Hawaii and Dr. Oliver was professor 
and chairperson of the Department of Political Science and College of Marine Sciences at the 
University of Delaware, at the time this article was first published. 



Notes 

1. Art, To What Ends Military Power? International Security 3-35 (Spring 1980); Baldwin, Power Analysis 
and World Politics: New Trends Versus Old Tendencies, World Politics 161-194 (January 1979); and BOOTH, 
NAVIES AND FOREIGN POLICY (1979), passim; CABLE, DIPLOMACY AT SEA 36 (1985). 

2. See JANIS, SEA POWER AND THE LAW OF THE SEA (1976). 

3. Id. at 63-64. 

4. See Hu, "Fishing Boats and Gunboats: The Convergence of Fisheries and Naval Policy," (Ph.D. diss., 
Univ. of Delaware, May 1987). The four cases examined include: the "Tuna Wars" between the United States 
and Peru and Ecuador, the Anglo-Icelandic "Cod Wars," the "Squid War" of 1986 between the Republic of 
China (ROC) and Argentina, and the protracted fisheries disputes between the ROC and the Philippines. 

5. HILL, MARITIME STRATEGY FOR MEDIUM POWERS 14 (1986). 

6. Id. at 14-17, 20, 30-36, 40-44, 46-48. Hill also quoted Moineville's version of the definition of medium 
powers in his book: "they certainly cannot be prepared for all events but . . . they have . . . enough resources 
to have options to choose from. ..." Id. at 195. 

7. BOOTH, supra n. 1 at 24. 

8. Id. 

9. Id. at 16, 17-24, 120-121, 270-271. 

10. HILL, supra n. 5 at 20. 

11. BOOTH, supra n. 1 at 18-20, 121. 

12. Cited in BOOTH, LAW, FORCE AND DIPLOMACY AT SEA 43 (1985). Texts within single quotes 
are Booth's quotation from O'Connell while texts within double quotes are Booth's argument. 

13. Id. 

14. Id. at 38-40. 

15. For example, see Knight, The Law of the Sea and Naval Missions, U.S. Nav. Inst. Proc. 32-39 (June 
1977). 

16. BOOTH, supra n. 12 esp. chap. 7. 

17. Id. at 139. 

18. Mat 168. 

19. Id. at 139. 

20. See Hu, supra n. 4; and Hu, The Sino- Argentine 'Squid War' of 1968: Its Implications for the Fisheries Policy 
Making, Marine Policy, 133-142 (April 1987). 

21. BOOTH, supra n. 12 at 179. 

22. Id. at 190-192. 

23. New Realism in Discussions ofSeapower, Marine Policy 83 (January 1987). 

24. Osgood, Military Implications of the New Ocean Politics, in ALFORD, SEA POWER AND INFLUENCE: 
OLD ISSUES AND NEW CHALLENGES, THE ADELPHI LIBRARY 2 at 12-14 (1980). 

25. Buzan, A Sea of Troubles: Sources of Dispute in the Neu> Ocean Regime, in ALFORD, supra n. 24 at 160. 



188 Readings on International Law 

26. See Hu, supra n. 4, esp. chaps. 5 and 6. 

27. See Hu, supra n. 20. 

28. See the Preamble of the 1982 United Nations Law of the Sea Convention (1982 LOS Convention). 

29. See Article 19, Paragraph 1 of the 1982 LOS Convention. 

30. See Article 39, Paragraph 1 (b) of the 1982 LOS Convention. 

31. See Article 52, Paragraph 2 of the 1982 LOS Convention. 

32. For an elaboration of these rights see the following articles in the 1982 LOS Convention, in particular 
Article 19, Paragraph 2; Article 21, Paragraph 1; Article 33, Paragraph 1; Article 40; Article 41, Paragraphs 1, 
2, and 7; Article 42, Paragraphs 1 and 4; Article 49, Paragraphs 1 and 2; Article 53, Paragraphs 1, 6, 7, and 11; 
Article 54; Article 56, Paragraph 1; Article 60, Paragraphs 1, 2, 4, 5, and 6; Articles 61 and 62; Article 73, 
Paragraph 1; Article 77; Articles 78, 80, and 81. 

33. BOOTH, supra n. 1 at 26. 

34. HILL, supra n. 5 at 87 or 149. 

35. Admiral Hill argues "the type or types of operation for which reach is required, if they can be defined, 
will clearly help to govern and limit the forces to be provided." Id. at 150. 



Chapter 1 4 

The Right of Innocent Passage for 

Warships in the Territorial Sea: 

A Response to the Soviet Union* 



Lieutenant Commander Ronald D. Neubauer, JAGC, U.S. Navy 

Five years have elapsed since the United Nations Convention on the Law of 
the Sea (1982 LOS Convention) was opened for signature in Jamaica on 10 
December 1982. Currently, over 150 nations have signed the 1982 LOS 
Convention, and over 30 nations have ratified it. The Convention will enter 
into force 12 months after the date of deposit of the sixtieth instrument of 
ratification or accession with the Secretary-General of the United Nations. 

U.S. policy regarding the 1982 LOS Convention was announced by President 
Reagan in his 10 March 1983 Ocean Policy Statement. The United States would 
not sign the 1982 LOS convention "because several major problems in the 
Convention's deep seabed mining provisions are contrary to the interests and 
principles of industrialized nations and would not help attain the aspirations of 
developing countries.*' Nevertheless, the non-seabed mining provisions of the 
Convention reflect customary international law, and the President committed 
the United States to recognize "the rights of other [coastal] States so long as the 
rights and freedoms of the United States and others under international law are 
recognized. Moreover, the United States will exercise and assert its navigation 
and overflight rights and freedoms on a worldwide basis in a manner that is 
consistent with the balance of interests reflected in the Convention. The United 
States will not, however, acquiesce in unilateral acts of other States designed to 
restrict the rights and freedoms of the international community in navigation and 
overflight. . . ." 3 

During the Third Nations Conference on the Law of the Sea (UNCLOS III) 
negotiating process, the United States and the Soviet Union pursued common 
interests and goals regarding freedom of navigation, including maintaining the 
right of innocent passage in the territorial sea. International commentators widely 
noted that our shared goals were realized in the regime for innocent passage 
reflected in the 1982 LOS Convention. However, notable Soviet naval writers 
have recently pub lished positions with a strong bias towards coastal State security 

* Reprinted from the Naval War College Review Spring 1988. 



1 90 Readings on International Law 

of the "Motherland," at the expense of the maritime mobility contemplated 
during UNCLOS III. 

This article will address the proposition put forward in the new Soviet writings 
on innocent passage in the territorial sea, that coastal States are entitled to limit 
warship innocent passage to "traditional" or other navigation routes designated 
by the coastal State. The analysis will begin with the innocent passage regime as 
reflected in the text of the 1982 LOS Convention. It will then consider the view 
of Soviet naval publicists, the negotiating history and general background of the 
innocent passage regime, and policy implications. 

Text 

In order to place the issue in context, we must first comprehend the basic 
provisions that comprise the regime of innocent passage. Article 17* recites the 
fundamental doctrine that "ships of all States . . . enjoy the right of innocent 
passage through the territorial sea." Article 18 defines "passage" as "continuous 
and expeditious" navigation through the territorial sea. Passage may include 
stopping and anchoring, but one incidental to ordinary navigation or because of 
force majeure, distress, or rendering assistance to those in danger or distress. 

Article 19 defines the meaning of "innocent passage." First, "[pjassage is 
innocent so long as it is not prejudicial to the peace, good order or security of 
the coastal State." This formulation creates a presumption that passage is innocent 
unless otherwise demonstrated. Next follows a list of objectively defined activities 
which, if engaged in, shall be considered to be "prejudicial to the peace, good 
order or security of the coastal state," in other words, non-innocent: 

• any threat or use of force against the coastal State; 

• any exercise or practice with weapons; 

• collection of information to the prejudice of the defense or security of the 
coastal State; 

• any act of propaganda; 

• launching, landing, or taking on board any aircraft or military device; 

• "loading or unloading of any commodity, currency or person contrary to 
the customs, fiscal, immigration or sanitary laws and regulations of the coastal 
State"; 

willful and serious pollution; 

any fishing activity; 

any research or survey activity; 

interfering with communications or other faculties; and 

"any other activity not having a direct bearing on passage." 



Unless otherwise specified, references to "Articles" refer to the articles of the 1982 LOS 
Convention. 



Neubauer 191 

Article 21 specifies matters as to which the coastal State "may adopt laws and 
regulations . . . relating to innocent passage. . . ." Among these are "the safety 
of navigation and the regulation of maritime traffic." Foreign ships exercising 
the right of innocent passage are required to comply with such coastal State laws 
and regulations and with generally accepted international regulations relating to 
the prevention of collisions at sea. Article 22 authorizes a coastal State to, "where 
necessary having regard to the safety of navigation, require foreign ships exercising the 
right of innocent passage through its territorial sea to use such sea lanes and traffic 
separation schemes as it may designate or prescribe for the regulation of the 
passage of ships.'* (Emphasis added.) 

Article 24 provides that the "coastal State shall not hamper the innocent 
passage of foreign ships through the territorial sea" or "impose requirements on 
foreign ships which have the practical effect of denying or impairing the right of 
innocent passage" or "discriminate in form or in fact against the ships of any 
State " 

Under Article 25, the "coastal State may take the necessary steps in its territorial 
sea to prevent passage which is not innocent." Additionally, the coastal State 
may, "without discrimination in form or in fact among foreign ships, suspend 
temporarily in specified areas of its territorial sea the innocent passage of foreign 
ships if such suspension is essential for the protection of its security. ..." 
(emphasis added.) 

Finally, Article 30 provides that, "[i]f any warship does not comply with the 
laws and regulations of the coastal State concerning passage through the territorial 
sea and disregards any request for compliance therewith which is made to it, the 
coastal State may require it to leave the territorial sea immediately." 

Thus, except for sea-lanes and traffic separation schemes necessary to the safety 
of navigation, the text of the 1982 LOS Convention does not authorize coastal 
States to limit the passage of ships, whether warships or merchantmen, to 
traditional or other specifically designated navigation routes. It is also important 
to note that the innocent passage regime does not authorize coastal States to 
condition innocent passage for warships on any type of prior notification or 
permission. 

Position of Soviet Naval Writers 

The current thinking of some Soviet writers is reflected in a recent article by 
Captain 1st Rank R. Sorokin, Innocent Passage of Warships Through Territorial 
Waters. Captain Sorokin repeats the generally accepted view that the regime of 
innocent passage is intended to strike a balance between the need for maritime 
mobility and the need for coastal State security. He rejects an interpretation that 
would permit coastal States to require prior notification or authorization for 
warships but argues that warships may be restricted to selected routes. 



192 Readings on International Law 

Perhaps because it lacks a sound basis in either practice or the 1982 LOS 
Convention text, Captain Sorokin's rationale in support of a right of the coastal 
State to restrict innocent passage to designated routes is a bit difficult to follow. 
In a nutshell, however, he seems to argue that since innocent passage exists solely 
to enable passage through the territorial sea, the coastal State may require that 
such passage, particularly for warships, take place only along the most direct 
routes that have traditionally been used for international navigation. He then 
argues further that by conforming to the designated routes within the territorial 
sea, foreign warships may unequivocally demonstrate that their passage is "in- 
nocent." 

These arguments, however, lack legal foundation. Nowhere does the 1982 
LOS Convention declare that innocent passage must be limited to the shortest 
possible routes. Furthermore, as noted above, Articles 21 and 22 give the coastal 
State the authority to establish sea-lanes and traffic separation schemes in its 
territorial sea only insofar as necessary to ensure navigational safety. The coastal 
State is not empowered to establish sea-lanes solely under the guise of "security." 

From the proposition that a ship conforming to designated routes "confirms 
that she is engaged in innocent passage and has not intruded into territorial 
waters," Captain Sorokin then leaps to his fundamental conclusion: "Thus the 
innocent passage of warships through territorial waters can be viewed as a 
traversing of territorial waters of the coastal State over the shortest traditional 
international shipping lanes or over routes established by the coastal State (along 
recommended courses, lanes, or traffic separation schemes) especially designated 
for the innocent passage of foreign ships, while complying with legislation of the 
coastal State and provisions of the 1982 UN Convention on the Law of the Sea.* 

It is not entirely clear whether Captain Sorokin believes that, as a matter of 
international law, warship innocent passage can only occur along the shortest 
international routes or specifically designated routes, or whether he believes that 
the coastal State may lawfully restrict warship innocent passage to such routes. 
Whatever the precise rationale, he clearly argues that where a coastal State has 
designated such routes, a warship may not exercise innocent passage outside 
them. 

The U.S.S.R. has enacted domestic law consistent with this position. Article 
13 of the Law of the Union of Soviet Socialist Republics on the State Frontier 
of the U.S.S.R. of 24 November 1982 provides: "Foreign warships and under- 
water vehicle shall enjoy the right of innocent passage through the territorial 
waters (territorial sea) of the USSR in accordance with the procedure to be 
established by the Council of Ministers of the USSR." 

The Rules for Navigation and Sojourn of Foreign Warships in the Territorial 
Waters (Territorial Sea) and Internal Waters and Ports of the U.S.S.R., approved 
by the U.S.S.R. Council of Ministers decree of 28 April 1983, enumerates the 
routes permitted for warships not entering internal waters and ports of the 



Neubauer 193 

U.S.S.R. Article 12.1 of those Rules provides: "The innocent passage of foreign 
warships through the territorial waters (territorial sea) of the USSR for the 
purpose of traversing the territorial waters (territorial sea) of the USSR without 
entering internal waters and ports of the USSR shall be permitted along routes 
ordinarily used for international navigation: 

• in the Baltic Sea: according to the traffic separation systems in the area of 
Kypu Peninsula (Hiiumaa Island) and in the area of the Porkkala Lighthouse; 

• in the Sea of Okhotsk: according to the traffic separation schemes in the 
areas of the Cape Aniva (Sakhalin Island) and the Fourth Kurile strait; (Paramushir 
and Makanrushi Islands); 

• in the sea of Japan: according to the traffic separation system in the area in 
Cape Kril'on (Sakhalin Island)." 8 

Thus, along the enormous Soviet coastline, only these several areas are open 
to innocent passage for warships. 

Negotiating History 

There is no rule of customary international law to the effect that coastal States 
may limit innocent passage of warships to traditional or other designated 
navigation routes. The 1958 Convention on the Territorial Sea and the Con- 
tiguous Zone contains no such provision. None of the Official Drafts preceding 
the 1982 LOS Convention had a rule to that effect. Even the Soviet Draft Articles 
on the Territorial Sea (Soviet Draft) did not include such a rule. In fact, the Soviet 
Draft articles on innocent passage were nearly identical in structure and substance 
to those finally adopted in the Convention. 

Like the 1982 LOS Convention, the Soviet Draft provided that coastal States 
may adopt laws and regulations for safety of navigation (Soviet Draft, Article 20) 
and, where navigational conditions make it desirable, establish traffic separation 
schemes (Soviet Draft, Article 21). The Soviet Draft also contained the provision 
that coastal States "shall not hamper innocent passage through the territorial sea 
or discriminate amongst foreign ships in respect of such passage." (Soviet Draft, 
Article 18). 

The notion that coastal States should have the right to limit warship passage 
to traditional or other designated navigation routes was contained within a 
proposal advanced by Mr. Roe, a representative of the Republic of Korea, at an 
UNCLOS III committee meeting on innocent passage in the territorial sea. Mr. 
Roe stated: "[T|he passage of warships through a territorial sea which did not 
constitute a necessary and important route for international navigation should be 
differentiated from the passage of other types of vessel [sic]. A coastal State should 
have the right to require foreign warships passing through its territorial sea to 
give prior notification of that passage or to obtain prior authorization for it." 
The proposal regarding warship passage through "necessary and important 



194 Readings on International Law 

routes** received little discussion and was of no consequence at UNCLOS III. 
However, there was intermittent discussion of the larger issue as to whether a 
coastal State could require prior notification for warship innocent passage. Due 
largely to opposition from the United states and the Soviet Union, however, no 
provision to that effect found its way into the 1982 LOS Convention or any of 
the preceding Official Drafts. 

A final germane point from the negotiating history was made by Mr. 
Olszowska, representing Poland, which was a cosponsor of the Soviet Draft. At 
a meeting on innocent passage Mr. Olszowka stated that "all the acts which were 
to be incompatible with the right of innocent passage were specified in Article 
16, paragraph 2 [subsequently numbered Article 19.2].** This view, which 
coincides with that of the United States, supports the interpretation of the 1982 
LOS Convention that not all conduct in violation of coastal State law or 
regulation is non-innocent; to be non-innocent, the activity must be proscribed 
in Article 19. Further, it confirms that the determination under international law 
of whether passage is "innocent*' depends entirely upon the activities of the vessel, 
not upon its status (e.g., warships) nor whether its route happens to be one 
ordinarily used for international navigational. 

Policy Implications 

The principal policy task for UNCLOS III regarding the territorial sea regime 
was to achieve a reasonable balance between two legitimate and vital competing 
needs: freedom of navigation, an inclusive community interest; and coastal State 
security, an exclusive community interest. The Conference produced a workable 
compromise between these interests, which was accepted, in the form of the 
innocent passage rules, by international consensus. Fidelity to international law, 
such as the law of the sea, promotes peaceful and orderly relations between States. 
Accordingly, peace and order are imperiled when nations take actions or impose 
regulations that are inconsistent with the internationally accepted norms. This is 
especially so where, as here, the rule unilaterally imposed by the Soviet Union 
has only recently been rejected by international consensus, and the circumstances 
in which the rule was rejected have not materially changed. 

A major goal of the innocent passage regime, as with any rule of international 
law, is to minimize the potential for dispute. Accordingly, the rules for innocent 
passage were designed to be objective, written in language resistant to divergent 
interpretations. The regime of innocent passage in the 1982 LOS Convention 
embodies the policy that all passage, including that of warships, is presumed to 
be innocent. The burden is on the coastal State to show non-innocence in 
accordance with the relatively specific, objective criteria in Article 19. The finite 
list of activities in Article 19 makes certain the categories of non-innocent 
activity. A warship may only be required to leave the territorial sea if her passage 



Neubauer 195 

is non-innocent under Article 19, thus preventing coastal States from using 
violation of any variety of law or regulation as an excuse to require warships to 
leave the territorial sea. To further minimize the potential for conflict, coastal 
States may not hamper innocent passage, impose requirements that have the 
practical effect of denying or impairing innocent passage, or administer innocent 
passage in a discriminatory manner. 

Evaluation and Conclusion 

The essential characteristic of the territorial sea regime is that "ships of all 
States . . . enjoy the right of innocent passage through the territorial sea." 13 The 
Soviet view — where there are no designated routes there is no innocent passage 
for warships — has no basis in customary international law, and is a gross departure 
from the principles supported by the United states and the Soviet Union and 
accepted by UNCLOS III. Attempts to restrict foreign warships to a few 
designated routes unlawfully hamper — indeed, can all but preclude — innocent 
passage. Exercise of the right of innocent passage reflected in the 1982 LOS 
Convention by sailing outside Soviet-designated routes does not render the 
passage non-innocent, and would not, therefore, justify an order to the vessel to 
leave the territorial sea. 

The device of restricting warship innocent passage in the territorial sea to a 
few designated routes is a transparent effort to circumvent the balance achieved 
during UNCLOS III between coastal State security and freedom of navigation. 
It is disturbing that Soviet writers are advocating a position contrary to this 
balance of interests which was supported by the Soviet Union throughout 
UNCLOS III. The precedential effect of this position should not be ignored. It 
would provide incentive to other States in their attempts to impose precisely the 
kind of prior notification or authorization requirements which were rejected at 
UNCLOS III. As was so aptly put by Professor John Norton Moore, a prominent 
international law authority: "[T]he costs associated with any failure to recognize 
freedom of navigation . . . will not necessarily be immediately manifest. Initial 
challenges may be subtle, plausible, and limited. Through time, however, the 
common interest will be eroded by unwarranted restrictions on transit, dis- 
crimination among users, uncertainty of transit rights, inefficient and inconsistent 
regulations, efforts at political or economic gain in return for passage, increased 
political tensions, and perhaps even an occasional military confrontation. . . ." 14 

Although purporting to penetrate the mentality of Soviet writers may be risky 
business, in this instance their motivation appears plain: to curtail general access 
of foreign warships to the Motherlands's territorial sea. The Soviet publicists are 
attempting to construct an argument which will enable them to reap the benefits 
of the navigational principles enshrined in the 1982 LOS Convention for the 
Motherland's blue-water navy, while severely restricting navigational rights for 



196 Readings on International Law 

foreign warships in the Motherland's territorial sea. This continued Soviet 
insistence upon coastline principles at home and navigationalist principles abroad 
carries with it the potential for confrontation that does not bode well for the 
international regime of the oceans. 



Lieutenant Commander Neubauer was the Assistant Staff Judge Advocate for Commander, 
Naval Sea Systems Command at the time this article was first published. 



Notes 

1. Opened for signature 10 December 1982, reprinted in United Nations Conference on the Law of the 
Sea, United Nations Convention on the Law of the Sea, U.N. pub. sales no. E83 V.5 (1983). 

2. U.S. President, Statement on United States Ocean Policy, Weekly Compilation of Presidential Documents, no. 
383 (10 March 1983). 

3. Id. 

4. Sorokin, Innocent Passage of Warships Through Territorial Waters, Morskoi sbomik, no. 3 (1986). 

5. Id. at 75. 

6. Id. 

7. Vedomosti S.S.S.R., no. 48, 1982, item 891, in COLLECTED LEGISLATION OF THE USSR AND 
CONSTITUENT UNION REPUBLICS (Buder trans. 1979), and BUTLER, THE USSR, EASTERN EUROPE, 
AND THE DEVELOPMENT OF THE LAW OF THE SEA (1983); for a detailed analysis of Soviet law relating to 
innocent passage in the territorial sea, see William E. Buder, Innocent Passage and the 1982 Convention: The 
Influence of Soviet Law and Policy, 81 Am. J. Int'l L. 331 (1987); for an examination of the development of Soviet 
law of the sea policy, including innocent passage in the territorial sea, see Allison, The Soviet Union and UNCLOS 
III: Pragmatism and Policy Evolution, 16 Ocean Dev. & Int'l L. 109 (1986). 

8. 24 I.L.M. 1715, 1717 (1985). 

9. U.S. Treaties, etc., "Convention on the Territorial Sea and the Contiguous Zone," done 29 April 
1958, v. 15, UST 1606, TIAS 5639. 

10. United Nations Third Conference on the Law of the Sea, Vol. 3, U.N. Doc. A/C.62/C.2/L.26, U.N. 
pub. sales no. E.75.V.5 (1975), at 203. 

11. United Nations Third Conference on the Law of the Sea, Vol. 2, U.N. pub. sales no. E.75.V.4 (1975), 
p. 110. 

12. Id. at 290. 

13. 1982 United Nations Convention on the Law of the Sea, Article 17, U.N. pub. sales no. E.83.V.5 
(1983). 

14. Moore, The Regime of Straits and the Third United Nations Conference on the Law of the Sea, 74 Am. J. 
Int'l L. 77, 79 (1980). 



Chapter 1 5 

Troubled Waters off the Land of the 
Morning Calm: A Job for the Fleet* 

Lieutenant Commander James R. Boma, U.S. Naval Reserve 



It is early Sunday morning, 4 February 1990. A South Korean ferry, accom- 
panied by a lone Republic of Korea (ROK) Navy Sea Hawk fast-attack 
gunboat, proceeds slowly in choppy seas on a routine resupply run toward the 
island of Paengnyong Do, one of the five precariously situated Northwest Islands. 

By authority of the 1953 Armistice Agreement, these remote islands, which lie north 
of a straight seaward extension of the demilitarized zone (DMZ) and perilously close to 
the North Korean mainland, are controlled by the United Nations Command and hence 
are under South Korean administration. Supported by armed-escorts, resupply missions 
have been conducted without incident since 1953. 

During 1988, the Seoul Summer Olympics were a resounding international public 
relations success for the South, and the North's boycott of the event served to heighten the 
stark contrasts between the two systems. While the North's economy, on an essentially 
wartime footing for nearly four decades, is stagnant and seemingly able to subsist only 
through massive infusions of economic and military aid from communist allies, the South 's 
is robust and booming. 

In addition to the ideological incompatibilities of the two governments, Kim Il-sung, 
the aging patriarch of the North who has ruled that government since its inception, is beset 
by political problems resulting from his attempt to transfer the reins of power to his son and 
heir apparent, Kim Jong It — doctrinal heresy to a dedicated Marxist-Leninist. Increasingly 
strident calls for forceful reunification, a lifelong promise of the elder Kim, have been 
emanating from P'yongyang and were capped on 1 January 1990 by a communique 
renewing earlier demands that the "puppet regime in the South" must obtain permission 
from the North prior to entering the disputed waters adjacent to the Northwest Islands. As 
always, the South Koreans ignored this verbal barrage and have continued to maintain the 
tenuous, but vital, logistics lifeline to these isolated outposts. 

The skipper of the Sea Hawk is alarmed when his radar operator reports 
contact on four high-speed surface craft, believed to be North Korean Osa or 
Komar missile boats, closing rapidly from the north. After radioing a frantic 
warning to the captain of the supply vessel, the Sea Hawk is struck topside by 

* Reprinted from the Naval War College Review Spring 1989. 



198 Readings on International Law 

Styx missiles which explode, cutting the craft in two and killing all aboard, long 
before its crew is able to bring their largely defensive guns to bear. 

The supply vessel immediately executes a turn to the south, but soon is 
overtaken by the North Korean boats which rake it from bow to stern with 
machine-gun and small-arms fire, killing three crewmen and seriously wounding 
the captain, who manages to radio a "Mayday" to the ROK Navy sector 
commander. A ROK Air Force F-5 fighter is scrambled immediately and reports 
that the supply vessel is under tow and appears to be heading for the North 
Korean port of Nampo. 

Meanwhile, in Seoul, a North Korean defector reports that his reserve 
motorized rifle division has been mobilized for war. Overhead reconnaissance 
confirms this, showing massive troop movements southward and increased 
activity along the DMZ. Receiving this unwelcome news, the Commander in 
Chief, Combined Forces Command (CINC/CFC),* a four-star U.S. Army 
general, alerts his U.S. and ROK forces and begins to increase their readiness for 
the expected North Korean thrust south across the DMZ. 

In Pusan, a port on the southeastern coast of the Republic, the captain of the 
U.S.S. Bunker Hill (CG-53), an Aegis-class cruiser, is recalled from a port visit 
and ordered to proceed at "best speed" with two U.S. ships in company — the 
guided missile frigate Rodney M. Davis (FFG-60) and the destroyer Fife (DD 
991) — to an operating area 40 miles due east of the North Korean east coast port 
of Wonsan to rendezvous with a carrier battle group proceeding to that area. 

Arriving early on the morning of 6 February, the Bunker HilFs captain is 
troubled by a report from the pilot of the ship's helicopter that the flight crew 
has spotted the periscope of one submarine and confirmed the presence of 
another, classified as probable Romeo and Whiskey-class and believed to be 
North Korean. Both have submerged and appear to be closing the group's 
position. Requesting permission to "neutralize" this threat, the pilot asks that 
additional helicopters be dispatched to prosecute these contacts and search for 
others. Just then, the cruiser's air-search radar operator reports six fast-moving 
"bogies" — unidentified and presumed hostile aircraft — closing their position. 

The Captain, feeling that old familiar knot in his stomach, calmly orders 
"General Quarters!" breathes deeply and picks up the secure encrypted red radio 
handset to inform his boss, Commander Task Group 75.1, who is embarked in 
his flagship, of the rapidly deteriorating situation and of his intent to engage the 
North Korean forces. 



W 



hile the picture just painted is not comforting, it is, unfortunately, all too 
plausible a scenario which might be confronted in this region of 



* This commander is many-hatted, serving not only as CINC/CFC, but also as Commander 
in Chief, United Nations Command; Commander, U.S. Forces Korea; and Commander, Eighth 
U.S. Army, Korea. 



Boma 199 

unrelieved tension. It serves as an example of the very situation in which the 
mettle of the U.S. maritime strategy and our national resolve will be tested. 
"Freedom of the Seas*' is not a mere slogan designed to arouse public passion 
and facilitate funding for a 600-ship navy. Rather, it forms the cornerstone of 
our ability to defend our vital interests, and those of our allies, in this "era of 
violent peace." 

High-seas navigational freedoms and overflight rights have been increasingly 
burdened by the encroachments of numerous coastal states. With the advent of 
the Freedom of Navigation (FON) Program in 1979, as subsequently reaffirmed 
by President Reagan in 1983, the United States has assumed the mantle of 
guardian and enforcer, where needed, of the international community's interests 
in the maritime common. One claim which appears to have exceeded recognized 
international peacetime norms is the 50-mile "military boundary zone," 
proclaimed by the People's Democratic Republic of Korea (North Korea) in 
1977. 

The Freedom of Navigation Program 

In his ocean policy statement of 10 March 1983, President Reagan emphasized 
the role of the United States as a leader in developing customary and conventional 
law of the sea. Broadly stated, the U.S. objective, both for reasons of self-interest 
and for interests common to all nations, is to "facilitate peaceful, international 
uses of the oceans and provide for equitable and effective management and 
conservation of resources." 

Though earlier, mainly because of its deep seabed mining regimen, President 
Reagan had announced that the United States would not sign the 1982 United 
Nations Convention on the Law of the Sea (1982 LOS Convention), on this 
occasion he stated that because the Convention's provisions dealing with the 
traditional uses of the oceans, including navigation and overflight rights, were in 
consonance with and represented customary practices, these rights would be 
recognized. But this recognition was expressly conditioned by the following 
important caveat: "so long as the rights and freedoms of the United States and 
others under international law are recognized by such coastal States." Further, 
the President went on to state that the United States, as a matter of national 
policy: "will exercise and assert its navigation and overflight rights and freedoms 
on a worldwide basis in a manner that is consistent with the balance of interests 
reflected in the convention . . . [but will not] . . . acquiesce in unilateral acts of 
other States which are designed to restrict these recognized rights and freedoms." 4 

As stated earlier, this was not a new development. Since the Carter administra- 
tion initiated the program during March 1979, the United States has successfully 
conducted a systematic Freedom of Navigation Program to protect U.S. and 



200 Readings on International Law 

international navigation and overflight interests on and over the seas against 
excessive maritime claims. 

Several key terms and concepts, which have gained the force of international 
law through custom, past and present practices, with some codified in conven- 
tions and treaties such as the recent comprehensive 1982 LOS Convention, need 
to be discussed briefly to put the issues in context. 

The territorial sea is a "belt of ocean which generally is measured seaward 
from the baseline on the coastal or island nation and subject to its sovereignty." 
(Unless special rules apply, the baseline is the low-water line along the coast as 
marked on that nation's official large-scale charts.) The United States maintained 
its traditional 3-nautical mile territorial sea until 28 December 1988 when 
President Reagan proclaimed a 12-nautical mile territorial sea. As in the past, the 
United States continues to respect other nations' territorial sea claims up to a 
maximum breadth of 12 nautical miles. However, the United States has made 
it clear that it will not recognize aspects of such a claim which do not "accord 
to the U.S. its full rights in the territorial sea under international law." One such 
important traditional right is that of "innocent passage" on the surface through 

Q 

a nation's territorial sea. 

Also, a contiguous zone of up to an additional 12 nautical miles, or a maximum 
of 24 nautical miles from properly drawn baselines, may be established for the 
limited purposes of preventing infringement of a coastal State's "customs, fiscal, 

immigration or sanitary laws and regulations within its territory or territorial 

,♦9 
sea. 

Finally, under the 1982 LOS Convention, a coastal nation may establish an 
exclusive economic zone (EEZ) of up to 200 miles from the baseline. In the 
EEZ, a state may regulate the exploration of natural resources, the production 
of energy from the water, currents and wind, maritime scientific research, the 
establishment of artificial islands, and other similar resource-related activities. 
However, with the exception of these purpose-oriented, express extensions of 
control into the contiguous zone and the EEZ, traditional high seas freedoms of 
unrestricted navigation and overflight endure. 

In other words, the degree of control exercised by the coastal nation is 
inversely proportional to the distance from its shores. While the vessels of other 
nations have only the limited rights of innocent passage, including use of force 
only in self-defense, within the limits of a proper territorial sea, the rights of 
vessels and aircraft in the contiguous zone and EEZ are minimally regulated by 
the adjacent coastal nation. It is important to emphasize the unhampered nature 
of the right of innocent passage. There is no recognition under the 1982 LOS 
Convention nor by the United States of any right of a coastal nation to impose 
a precondition of permission or notice prior to the exercise of this fundamental 
right. 



Boma 201 

There are several other passage regimes which merit an explanation: ar- 
chipelagic sea lanes passage and transit passage through international straits. 

An archipelagic nation is constituted wholly of one or more groups of islands, 
e.g., the Republic of the Philippines. Within the limits specified by the 1982 
LOS Convention, such nations may draw straight baselines joining the outermost 
points of their outermost islands. The waters enclosed within these baselines are 
called archipelagic waters. These archipelagic baselines are also the baselines from 
which the archipelagic nation measures seaward for its territorial sea, contiguous 
zone and exclusive economic zone. The United States recognizes the right of an 
archipelagic nation to establish archipelagic waters, provided that the baselines 
are drawn in conformity with the 1982 LOS Convention and the United States 
is accorded navigation and overflight rights and freedoms under international law 
in the enclosed archipelagic and adjacent waters. 

Two means are available to preserve archipelagic sea lanes passage. First, 
archipelagic nations may designate archipelagic sea lanes through their ar- 
chipelagic waters suitable for "continuous and expeditious passage of ships and 
aircraft." All normal routes customarily used for international navigation and 
overflight are to be included in this scheme. If the archipelagic nation does not 
designate such sea lanes, the routes normally used for navigation and overflight, 
nonetheless, remain available to all nations for archipelagic sea lanes passage. 

The right of archipelagic sea lanes passage is defined as "the exercise of the 
freedom of navigation and overflight for the sole purpose of continuous and 
expeditious transit through archipelagic waters, in the normal modes of opera- 
tion, by the ships and aircraft involved." This right of archipelagic sea lanes 
passage cannot be impeded nor suspended by the archipelagic nation for any 
reason. 

With regard to international straits, two situations exit. The first involves 
international straits overlapped by territorial seas, i.e., where the territorial seas 
of the adjacent coastal nations leave no high-seas corridor. In this instance, the 
ships and aircraft of all nations, including warships and military aircraft enjoy the 
right of unimpeded transit passage through such straits. Transit passage is the 
exercise of the freedom of navigation and overflight solely for the purpose of 
continuous and expeditious transit in the normal modes of operation utilized by 
ships and aircraft for such passage. "Normal modes of operation" means that 
submarines may transit submerged, and surface warships, consistent with sound 
navigational practices and security of own force considerations, may transit in 
formation, and launch and recover aircraft. 

Transit passage through international straits cannot be suspended by the coastal 
or island nation for any purpose during peacetime. This principle of international 
law also applies to transiting warships of nations at peace with the bordering 
coastal or island nation, but involved in armed conflict with another nation. 
However, consistent with generally accepted international standards and to 



202 Readings on International Law 

promote navigational safety, the coastal or island nation may designate sea lanes 
and traffic separation schemes which ships in transit must respect. 

With respect to the second category of international straits, those not com- 
pletely overlapped by territorial seas and, in archipelagic waters outside ar- 
chipelagic sea lanes, all surface ships enjoy the more limited right of innocent 
passage. Submarines must transit on the surface; launching and recovery of aircraft 
are not permitted; and weapons exercises may not be conducted. Innocent 
passage through such straits may not be suspended. Temporary suspension of 
innocent passage through archipelagic waters outside archipelagic sea lanes is 
permitted in specified areas when essential to the archipelagic nation's security, 
but only after prior promulgation of its intentions to do so, and the temporary 
suspension must be applied in a nondiscriminatory manner. 

A special status accrues to warships and military aircraft which, as mobile 
extensions of their sovereign, enjoy general immunity under custom, past 
practice and the provisions of the 1982 LOS Convention. Their government 
may be ultimately held liable for damages, but the only self-help measure 
immediately available to the coastal state in the event of an alleged violation of 
applicable rules is to require that the offending ship leave its territorial sea. 

Many coastal nations have established what the United States and others deem 
to be excessive maritime claims, which are either too broad in extent, or seek to 
ban or place impermissible preconditions on the exercise of innocent passage, 
transit passage, or archipelagic sea lanes passage. These claims, whether asserted 
by friends or potential adversaries, are inimical to the interests of the United States 
and any other seafaring sovereign. These restrictions imperil the unrestricted 
movement of commerce and resources in the global market and are detrimental 
to the essential mobility of U.S. defense forces. 

They are, therefore, susceptible to peaceful challenge under the FON Pro- 
gram. 

Nature of the North Korean Claims 

On 22 June 1977, North Korea promulgated a 200-mile exclusive economic 
sea zone which was to take effect on 1 August 1977. The language of this 
pronouncement was unobjectionable except for the practical consequences of its 
attempted establishment off the west coast of North Korea, where only ap- 
proximately 100 miles of Yellow Sea separates the peninsula from its behemoth 
neighbor, the People's Republic of China. However, not wishing to press the 
issue with their sometimes fraternal comrades, the North Koreans have indicated 

through their subsequent enforcement practices that they will assent to a midline 

1 ft 
delineation of the EEZ in the Yellow Sea, which approximate a 50-mile zone. 



Boma 203 



Military Boundary Zone. Following closely upon the heels of the announcement 
to establish the EEZ came the unexpected announcement of a 50-mile wide 
"military boundary zone," which was to take effect simultaneously on 1 August 
1977. (See figure 1.) Purportedly to safeguard the newly promulgated EEZ and 
to "firmly defend militarily the national interests and sovereignty*' of North 
Korea, the communique of the Supreme Command of the Korean People's 
Army provided, in relevant part, as follows: "The military boundary is up to 50 
miles from the starting line of the territorial waters in the east sea [Sea of Japan] 
and to the boundary line of the economic sea zone in the west [Yellow] sea. 



NORTH KOREAN MILITARY AND ECONOMIC ZONES 




Figure 1 

"In the military boundary (on the sea, in the sea and in the sky) acts of 
foreigners, foreign military vessels and foreign military planes are prohibited, and 
civilian ships and civilian planes (excluding fishing boats) are allowed to navigate 
or fly only with appropriate prior agreement or approval." 

"In the military boundary (on the sea, in the sea and in the sky) civilian vessels 
and civilian planes shall not conduct acts for military purposes or acts impinging 
upon the economic interests." 

While a plain reading of the text would appear to exclude fishing boats from 
the category of civilian ships which required prior approval for entry, Japanese 
officials, during the course of subsequent unofficial fishing negotiations, were 
shocked to learn that North Korea actually intended that foreign fishing within 
the military zone was "out of the question from the beginning." 



204 Readings on International Law 

Problems with the North Korean Claims 

Several ambiguities in the language of the announcement, when coupled with 
earlier imprecise language and erratic enforcement practices, have further ruffled 
these troubled waters. 

Improperly "Drawn Baselines and Unrecognized Historic Bay Claims. One 

problem which pervades the North Korean claims is the vagueness of their 
pronouncements. Their baselines, from which all other claims are derived, i.e., 
territorial sea, contiguous and exclusive economic zones, have not been promul- 
gated. The presumed baselines have been gleaned from the unofficial contacts 
referenced between North Korean officials and Japanese envoys. A recent Notice 
to Mariners captured this uncertainty in describing the North Korean east coast 
straight baselines in the following fashion: "Baseline is hypothetically calculated 
by State Department Geographer as straight line across Sea of Japan which joins 
seaward terminus of Korean Military Demarcation Line and PDPJC boundary 
with the Soviet Union." (See figure 2.) 

Under the applicable provisions of the 1982 LOS Convention, which reflects 
customary international practices, baselines, as outlined above, are normally 
drawn by following the low- water marks along the coast. An exception to this 
general rule allows straight baselines only where the coast is deeply indented, 
which would result in a correspondingly untenable, serrated line at sea, or 
where there is a fringe of islands along the coast in its immediate vicinity. A 
glance at a chart will confirm that the North Korean coastal geography admits 
to neither limited exception to the general rule of coastally conforming baselines. 

Also, the North Korean baselines conveniently encompass several supposed, 
although unarticulated, "historic bays," which have not been recognized by the 
international community at large. Similar claims have been advanced by the 
Soviets (Peter the Great Bay), and the infamous "line of death" which Libya 
announced was an unsuccessful attempt to enclose the Gulf of Sidra. 

However, the North Korean bays do not meet the generally accepted norms 
codified in the 1982 LOS Convention, which provide that a bay is a "well- 
marked indentation in such proportion to the width of its mouth as to contain 
land-locked waters and constitutes more than a mere curvature of the coast.* 1 The 
Convention then sets forth technical tests for gauging the validity of a bay claim. 

At this point, the "operator" reader may be thinking: "So what? Let the 
lawyers and cartographers immerse themselves in the excruciating minutiae of 
this line drawing evolution. Of what practical importance is this dispute?" Two 
important consequences flow from this baseline demarcation. 

First, waters on the landward side of the baseline of the territorial sea form 
part of the internal waters of the State. Internal waters are, as a practical matter, 
as subject to the sovereignty of the coastal nation as its drier real estate and, 



Boma 205 

NORTH KOREAN BASELINES, AND SOVIET LINE ENCLOSING PETER THE GREAT BAY 



USSR 



PRC 






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/ / 
/ / 
/ / 
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/ .7 
J St 

it 



DPRK 



/ // 



£ 

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't /' 

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Korean Gulf 



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Figure 2 
consequently, as inviolate. In other words, no innocent passage or nonemergency 
transit of any kind is permitted without the prior permission of the coastal nation. 
Second, and of possibly greater significance, the baselines, as has been 
previously mentioned, set the inner boundary which determines the seaward 
extent of the territorial sea, and the contiguous and exclusive economic zones. 
For example, off the North Korean east coast city of Wonsan, straight baselines 
extend internal waters 50 nautical miles seaward. Thus, impermissibly drawn 
baselines, while aesthetically pleasing on a chart, allow the coastal nation to 
exercise increased control over expanded internal waters, while their claims 
encroach seaward at the expense of the maritime common owned by all. 



Uncertainty of Territorial Sea Claims. As was indicated, the North Koreans have 
established the breadth of their EEZ and military boundary zones, but not the 



206 Readings on International Law 

precise coordinates of each. Although a 12-nautical mile territorial sea claim from 
the indicated baselines is presumed (as a result of their actions in the Pueblo 
incident of 1 968) , this has not been formally announced. Additional corrobora- 
tion of a nominal 12-mile territorial sea claim might be inferred from North 
Korea's signing, but not ratification, of the 1982 LOS Convention when it 
opened for signature during December 1982. But again, this is conjecture and, 
in light of consistently erratic and violent North Korean behavior, probably 
unwarranted. 

Military Boundary Zone. The ambiguity regarding the precise coordinates of any 
of the North Korean claims logically extends to its 50-mile military boundary 
zone. While the Department of Defense Maritime Claims Reference Manual 
indicates that the military boundary zone extends beyond the presumed territorial 
sea of 12 miles, or for a total of 62 miles from the baseline, "plain reading" of 
the express language of the announcement would seem to indicate that the 
breadth of the security zone off the east coast is 50 miles from the baselines, as 
appears to be the interpretation of one commentator. The military boundary 
zone off the west coast is generally agreed to be coextensive with the economic 
sea zone, which is 50 miles, abutting China's similar "military warning zone."" 

In any event, although North Korea has signed the 1982 LOS Convention, 
the 50-mile security zone clearly exceeds the maximum combined limits of a 
permissible territorial sea and contiguous zone (24 miles from baseline). Further, 
the absolute prohibition against foreign warships transiting this zone denies 
innocent passage in the territorial sea. Finally, high seas surface passage and 
unimpeded overflight rights in the contiguous zone and beyond to 50 miles are 
extinguished by this unilateral declaration. While the 1982 LOS Convention 
recognizes the right of a coastal State, after notification, to temporarily suspend 
innocent passage within its territorial sea for security reasons, bans on warships 

and prior permission regimes are neither authorized nor accepted international 

33 
practice. 

In effect, the North Koreans are attempting to assert a degree of control not 
recognized under the Convention or past practices in a peacetime regime, except 
within a nation's internal waters. 

Diplomatic protests greeted this surprise announcement. As might be ex- 
pected, South Korea vehemently opposed the North Korean claim as "unprece- 
dented under international law." The Commander in Chief, United Nations 
Command, speaking for that command as well as in his role as senior U.S. 
commander in the Republic, Commander, U.S. Forces Korea, registered a 
vigorous protest. The Japanese voiced disapproval, but in a somewhat muted 
fashion due to the economic reality that Japanese fishermen were then catching 
over 80,000 tons of fish annually in those waters off North Korea which were 
now encompassed within the EEZ and military boundary zone. The Soviets, 



Boma 207 

a growing blue water naval power, increasingly aware of the benefits accruing 
from unimpeded high seas freedoms, curiously, were content merely to report 
the North Korean announcement and Japan's disapproval. China, perhaps due 
to the existence of its own indistinguishable military warning zone, issued no 
statement regarding the announcement. 

Ambiguity Regarding Legal Impact of 19 5 3 Armistice. Although not yet advanced 
directly in support of its military boundary zone, North Korea might plausibly 
argue that the Armistice signed at P'anmunjom in 1953 was legally and, in fact, 
merely a ceasefire and that, technically, a state of war still exists on the peninsula. 
Also, there is ample historical precedent for such an argument. Many other 
countries, including the United States, have established in the past, or presently 
maintain, maritime defense or war zones. However, there are several salient 
characteristics of the North Korean zone which distinguish this from other such 
zones and would, therefore, tend to undermine any significant reliance on 
historical analogies. 

Maritime security or warning zones find their modern origins in the sea 
defense zones promulgated by Japan during the Russo-Japanese War of 1904. 39 
The Japanese zones and those adopted by the United States during World War 
II extended well beyond the limits of their respective territorial seas. However, 
they primarily imposed limits on the transit of foreign vessels during certain hours 
or in particular areas without imposing a total ban on such passage. Also, these 
zones were generally established at the outset of hostilities and terminated 
promptly at the conflict's end. 

A more recent example would be the Maritime Exclusion Zone established 
around the Falkland Islands by British naval, primarily submarine, forces during 
the 1982 war. Unlike the North Korean claim, the British announced, in 
advance, the exact position of the zone and initially limited its application to 
Argentinian warships and aircraft which were deemed a threat to British forces 
in the area of operations. Subsequently, the British prohibited all such operations 
with the imposition of a Total Exclusion Zone. However, this zone was imposed 
only during the actual conduct of military operations, and was lifted at the 
conflict's end, with the exception of a ban on Argentine military traffic within 
150 nautical miles of the Islands (the Falkland Islands Protection Zone). 40 
Further, pending a permanent settlement of the conflict, a "prior permission" 
regime remains in effect for Argentine civilian vessels or aircraft within the Zone. 

Whatever the reasonable limits are as to scope, notice and duration of such an 
arguably permissible zone, the North Korean claim was announced 24 years after 
the cessation of open hostilities, and the degree of control envisioned is surely 
beyond the reasonable spectrum of legitimate measures which might be under- 
taken by a State which no longer faces imminent or actual hostilities. Moreover, 



208 Readings on International Law 

such vague "security*' interests lend themselves to abuses which could significant- 
ly erode traditional high-seas freedom if allowed to go unchecked. 

Other nonhostilities-related sea defense zones are peacetime geographic 
demarcations which are primarily designed to provide a division of military effort 
between contiguous allies to meet armed attacks. In other words, they establish 
areas of anticipated naval operations or areas of respective responsibility in the 
event of hostilities and are contingent upon such an occurrence. In contrast, 
the North Korean east and west coast military boundary zones go far beyond this 
in attempting to enforce routine restrictions which should not be permitted in 
peacetime, even in an "era of violent peace." 

The situation in this instance is further aggravated by the precarious status of 
the Northwest Islands. As previously indicated, although these islands are under 
South Korean administration, and the Armistice Agreement specifically prohibits 
the blockade, by sea or air, of the areas under the control of the other side, no 
sea lanes or aerial routes were provided to reach these outposts which lie well 
within 12 miles of the North Korean coast. 

Analysis of U.S. Options 

General Considerations. It is unclear under international law whether diplomatic 
protests alone are sufficient to thwart the unilateral actions of a coastal nation 
attempting to encroach upon the rights of all maritime nations to the unencum- 
bered usage of the high seas. These troubling "creeping" claims through which 
nations attempted to dramatically expand their territorial seas, or to exercise 
previously unrecognized sovereign rights in offshore regions, were a key impetus 
to the convening of the conference which ultimately produced the 1982 LOS 
Convention. The drafters of the Convention sought to legitimize and codify the 
growing international consensus in favor of expanding territorial seas from the 
traditional "cannon shot range" of 3 miles to 12 miles, but to cap the gradual 
drift seaward at this limit. 

Likewise, the provision of a contiguous zone extending an additional 12 miles 
beyond the seaward edge of the territorial sea provided recognition of limited 
law enforcement and territorial integrity concerns, while balancing these with 
the traditional high-seas freedom of navigation and overflight in those waters. 
Finally, the provisions providing for the establishment of an exclusive economic 
zone permitted States to exploit and capture maritime resources within an 
expansive area, extending as far as 200 nautical miles from the baseline. Prior to 
the development of this novel concept, the only legal mechanism available to 
establish such control was the attempted exercise of the sovereignty associated 
with territorial seas by extending these claims seaward. The carefully considered 
EEZ regime again attempted to achieve the delicate balance between the coastal 



Boma 209 

nation's resource needs and the interests of the remainder of States in minimal 
interference with the maritime common. 

Security zones, such as the North Korean variant, are particularly troubling 
for they do not recognize even the limited, surface "innocent passage" rights in 
the territorial sea, but rather seek to ban foreign warships entirely. They also 
attempt to impose a permissive passage regime for nonmilitary vessels and aircraft. 
Not only this, but the de facto recognition afforded if these claims are not physically 
challenged would have precedential effect and, over time, might spur other, 
perhaps, even more expansive claims of this sort. This would undermine the 
careful compromises and balancing of interests which the 1982 LOS Convention 
represents and lead to the proliferation of the very evils which the Convention 
seeks to avoid. 

The U.S. Role in the Assertion of Navigational Freedoms. The United States is 
a maritime power which presently depends, both for its own security and that 
of its interdependent allies around the world, upon the flexibility and speed of 
its forward deployed maritime and air forces. And, this dependence is not likely 
to lessen appreciably in the future. In the January 1988 report of the blue-ribbon 
Commission on Integrated Long-Term Strategy, Discriminate Deterrence, the 
authors stressed that for at least the next 20 years we will have an urgent need 
for "versatile, mobile forces, minimally dependent on overseas bases, that can 
deliver precisely controlled strikei against distant military targets." Further, an 
identified long-term trend which bodes ill for such a strategy is "our diminishing 
ability to gain agreement for timely access, including bases and overflight rights, 
to areas threatened by Soviet aggression." Thus, preservation of navigational 
and overflight rights is imperative to the rapid employment of our forward 
deployed forces which, in turn, ensure our very survival. 

Likewise, in peacetime, the economic lifeblood of the Free World flows 
through the straits and waters of the world's seas on a daily basis. Further inroads 
into the freedoms of navigation and overflight could have the direst of conse- 
quences for ourselves and our allies. 

Given the proven irascibility of the North Koreans, as pointedly demonstrated 
by the 1968 Pueblo incident and the downing of a U.S. Navy EC-121 aircraft 
the following year, as well as the reality that alternative merchant routes and 
fishing grounds are readily available and more prudently used by commercial 
vessels, it is incumbent upon the United States, as the preeminent maritime 
power, to consistently and patiently ply these troubled waters in order to establish 
actual usage and to show peaceful contempt for the apparent North Korean 
"annexation" of international waters and airspace. 

Further, as will be discussed below, it is this author's opinion that the objectives 
of the Freedom of Navigation Program will not be met by one-time transits. 



210 Readings on International Law 

Rather, these rights should be continuously asserted on a regular basis if they are 
not to atrophy and ultimately disappear. 

Adverse Possession of the Maritime Common. The concepts of expanding 
territorial seas and the potentially more ominous unilateral restrictions on, or 
prohibition of, navigation and overflight are attempts to trespass upon the 
historically recognized rights of all nations to the high seas. An analogy in U.S. 
domestic law is the concept of "adverse possession," where, under specified 
circumstances, long-continued possession of land may result in the acquisition 
of tide, by a trespasser, that is good even against the rightful owner of the property. 
An essential element of the claim is that the possession be adverse to the true 
owner. In the domestic context, statutes govern the period of time in which the 
rightful owner must act to recover his land. 

The social policy which appears to justify the rather severe consequences for 
the true owner is premised upon the societal utility in seeing that an asset is being 
used in a productive manner which benefits the larger society as a whole. 

However, in order for the trespasser to obtain the recognized property interest, 
it is necessary that his possession be open, notorious and contrary to the interests 
of the rightful owner. In other words, if the occupation is permissive, as under 
a lease or easement or, by analogy, conferred by a treaty or agreement, it is not 
contrary to the ownership rights of the true owner and, thus, has no legal effect. 

Of course, in the international system, there is no statutory delineation of the 
period of adverse maritime encroachment, nor an effective tribunal where the 
matter might be conclusively resolved. However, this concept might offer some 
useful insights in defending against excessive maritime claims. The observed 
practices in defending against such claims appear to have striking parallels. 

First, diplomatic protests are initiated to publicly disabuse the offending coastal 
state of any notion that acquiescence by default will be conceded. By thus 
opposing the claim as adverse to the maritime interests of the community of 
nations, it is next incumbent upon the true owner of the rights being infringed 
upon, that same community, to exercise and demonstrate the continuing utility 
of, and resolve associated with, this universal interest. 

And because custom and practice have such major impacts in the international 
legal system, especially in the absence of governing treaty provisions to the 
contrary, this exercise is particularly important. Otherwise, new customs and 
practices may evolve and be legitimized in the dynamic international legal system, 
thereby further eroding existing rights. 

In the international community, the responsibility for the assertion of these 
right falls squarely upon the shoulders of the leading maritime power, the United 
States, which, in effect, serves as a trustee for their effective enforcement. 



Boma 211 
Hypothetical Regimen for Assertion of Navigational Rights 

Assessment of Korean Situation. Before structuring forces which might be 
employed to assert navigational freedoms in the face of the North Korean claims, 
a brief summary of the contemporary Korean political situation and North 
Korean forces will be provided. 

As anyone who has had the opportunity to visit the Korean village of 
P'anmunjom will readily attest, although there has been a ceasefire in effect for 
35 years, tensions remain very high and volatile between the two sides. Attempts 
at reconciliation and reunification have been pursued in earnest by the South 
Korean government, but the only solution which the North seems willing to 
explore is capitulation by the South to Pyongyang's "enlightened" leadership. 
Unfortunately, prospects for compromise between these two polar regimes are 
not hopeful. 

Although the factual setting of the opening scenario was hypothetical, the 
North's unsettling internal pressures are all too real. Given the characteristic 
unpredictability and demonstrated irritability of the North, extreme caution is 
warranted in planning an operation of this type if a conflagration is to be avoided. 

Also, the potential military capabilities of the North should not be underes- 
timated. North Korea possesses a very large army, a respectable air force and a 
formidable coastal naval punch. Further, these forces are tied together by an 
effective command, control and communications (C ; network, and capable of 
being triggered by an impressive indicators and warning (I&W) system. If they 
so desire, the North Koreans are fully able to conduct a spirited defense of their 
coastal waters, including the full extent of their military boundary zone. 

Structuring of Forces. In selecting the forces needed to accomplish the FON 
objectives in this area, it is important to keep firmly in mind that the purpose of 
this program is the peaceful assertion of navigational rights, and not unnecessary 
provocation. However, while the intention of the United States is to conduct 
peaceful transits through the disputed areas, the reaction, particularly in the case 
of North Korea, may provide a very warm reception. Therefore, it is essential 
that unit and national self-defense considerations be incorporated into all aspects 
of the planning process. 

At first view, it might seem that a combined ROK-U.S. naval force would 
be best suited for these operations. However, in this writer's opinion, this would 
be viewed as highly provocative, in and of itself, to the North. It appears that it 
would be better under these circumstances to conduct a separate, coordinated 
program, with the ROK Navy responsible for maintaining the vital sea lanes to 
the Northwest Islands within the west coast zone, while the U.S. Navy assumes 
responsibility for the challenge of the east coast military boundary zone. 



212 Readings on International Law 

Because the South already conducts these resupply missions on a routine basis, 
the real question which needs to be addressed is the proper composition of the 
U.S. forces which might be employed. 

Use of a carrier battle group, or multicarrier battle force, might seem very 
appealing from a self-defense perspective, especially in light of the considerable 
threat posed by North Korea. But, in this writer's view, this is not a viable option 
due to the general perception of the carrier-centered forces as offensively oriented 
strike assets. The high-speed, short reaction aerial threat posed to the North 
Koreans by this sort of force would seem dangerously likely to elicit an attack, 
which might escalate, at worst, to renewed hostilities on the peninsula itself. A 
contrary view might hold that because these assets are so dear to the United 
States, and inherently capable of exacting a terrible price for such a misstep, the 
North would not challenge their presence. However, this assumes a rational 
decision-making model, and past North Korean conduct would not warrant this 
optimism. 

In this author's opinion, aerial flights alone are insufficient for a meaningful 
challenge. First, the use of high-performance naval or air force aircraft would be 
perceived as a threat. Further, aircraft, by their very nature, are transitory and 
incapable of providing the duration of operations necessary to demonstrate 
credible resolve. Finally, the North Korean zone contains surface prohibitions as 
well, which must be contested. If overflight rights are to be asserted, it is 
recommended that this be accomplished independently of, but in a closely 
coordinated fashion with, the surface navigational exercises. 

The clandestine warriors of the deep — submarines — are similarly rejected as 
an appropriate platform for this assertion proposal. Their effectiveness and very 
survival is predicated upon their "invisible invincibility." Surface transits by 
submarines in this area are rejected out of hand as both unnecessary and foolhardy. 
The conclusion drawn is that a surface force is essential, as well as best suited, for 
this mission, as possibly complemented by the referenced independent, coor- 
dinated overflight program. 

Next, what units might comprise this SaG (surface assertion, vice action, 
group)? The recommended disposition would be centered around the impressive 
capabilities of an Aegis-class cruiser (CG-47), as supplemented by a Perry-class 
frigate (FFG-7), and a Spruance-class destroyer (DD-963). The Aegis' SPY-1 A/B 
system possesses a substantial antiair warfare capability, as well as ample command, 
control and communications and early warning performance. 

To counter the significant North Korean submarine threat, a Spruance-chss 
ship would provide adequate antisubmarine warfare protection for the group. 
To back up the other ships in the event of casualties, or to provide an additional 
level of force protection, the ASW and AAW capabilities of the Perry-class frigate 
make it an excellent candidate for this role. 



Boma 213 

In this force mix, the Harpoon missile-equipped ships would provide long 
range, antisurface warfare protection against the potent North Korean missile 
and torpedo-firing fast-patrol boats. Additionally, all three ships are capable of 
carrying and supporting LAMPS helicopters, which would add critical airborne 
early warning and stand-off ASW capability to the force. With the exception of 
the exercise of "innocent passage" within a territorial sea, such aerial recon- 
naissance is fully consistent with high seas freedom of operations and in keeping 
with the desired defensive posture. 

In the alternative, should greater capability be desired, a larger force might be 
readily found in the form of a battleship surface assertion group (BBSaG). This 
would provide additional punch to the group, especially in the area of ASUW. 
However, with the advent and proliferation of stand-off, antiship cruise missiles, 
the additional capabilities of this grouping are not necessarily decisive. Never- 
theless, from a psychological viewpoint, the BBSaG would give greater pause for 
reflection and might intimidate would-be aggressors. 

Air cover for the group would be optimally provided by a carrier battle group 
operating in associated support in waters well clear of the disputed area. The 
second choice would be to provide USAF, USN or USMC aircraft cover from 
nearby Japanese bases, although political and diplomatic considerations might 
preclude this. As a last resort, USAF or ROKAF assets from the Republic of 
Korea could furnish this protection, but the perceived escalatory potential of this 
option would seem to militate strongly against its adoption. 

Concept of Operations. Once formed, the hypothetical SaG should transit the 
area in such a fashion so that the planned intended movement (PIM) of the 
formation is on a course which opens the North Korean coast as it transits through 
the military boundary zone. For example, the ships might get underway from 
Pusan and proceed north remaining within 25-40 miles of the South Korean 
coast. Upon entering the military boundary zone, the formation could turn 
northeast and proceed through the area until reaching the boundary of the zone. 
If the ships entered from the north, the initial track would be slightly southeasterly 
so that a gradual opening of the range to the coast could be achieved. The initial 
transits might be initiated at a range of 40-50 miles from the North Korean coast 
to provide the force with ample "sea room" in which to acquire and engage any 
detected threat. Further, this would minimize the provocational potential of the 
initial transit. Assuming that initial operations were successful, and relying upon 
gradual desensitization to these operations, successive transits might gradually 
close the coast. 

However, under no circumstances is it recommended that these forces enter 
the claimed 12-mile territorial sea in order to assert "innocent passage" rights. 
In this writer's opinion, such an attempt would virtually guarantee an engage- 
ment. The legal justification for this nonassertion of the rights of innocent passage 



214 Readings on International Law 

would be couched in terms of the recognition of the state of belligerency existent 
between the North and the United Nations Command in the South. Diplomatic 
protests of the excessive baseline claims should expressly reserve the rights of 
innocent passage through the territorial sea. However, operational realities 
dictate that, as a practical matter, these rights have been suspended, but not 
extinguished, by the prolonged state of belligerency which the Armistice secured. 
Further, with the concurrence of South Korea, their Northwest Island resupply 
missions should be retroactively reported on a regular basis to document innocent 
passage transits on the west coast. To avoid the appearance of inconsistency, it 
may be pointed out that these transits are provided for within the implied terms 
of the Armistice Agreement. 

The timing of these FON assertion exercises is a critical factor which warrants 
careful consideration by the operational planner. Obviously, these adversarial, 
but not purposely provocative, operations cannot take place in a vacuum. A 
propitious time to initiate the limited, hypothetical FON operations outlined, 
so as to minimize unexpected North Korean reaction, is to make it a part of 
regularly scheduled U.S. operations in the area, such as the annual "Team Spirit" 
exercise. This appearance of U.S. naval forces is a routine event which would 
not arouse undue apprehension on the part of the North, and it appears that 
FON Program goals are compatible with exercise objectives. 

Risk /Benefit Analysis. It is clear that the risk in conducting these operations 
would be substantial, but the steps recommended, if implemented, should 
ameliorate any legitimate perceptions of provocation on the part of the North 
Koreans. In light of the sensitivity of this area, the political decision to proceed 
with this assertion of navigational rights operation would be very difficult. 
However, in this author's opinion, there are compelling reasons which would 
justify the risks entailed. 

One important reason why the North Korean claims need to be resisted 
through physical assertion operations is to maintain the integrity and credibility 
of the FON Program. In light of the high risk/significant threat scenario outlined, 
it is hoped that North Korean claims would not be relegated to the "too hard" 
category. It is one thing to challenge the 200-mile territorial sea claim of a 
relatively benign South American neighbor, for instance, and quite another to 
face the unpredictable consequences of an encounter with the consistently erratic, 
aggressively minded North Koreans. This is not meant to imply that all FON 
operations undertaken to date have been "milk runs." Quite to the contrary, the 
recent Black Sea confrontation, the ongoing dangerous Persian Gulf operations, 
and the repeated forays below the Sidra "line of death" would quickly dispel any 
such notion. However, it is essential that all excessive claims be routinely 
challenged in a deliberate, albeit cautious, manner. The adoption of this proposal 
would pay handsome dividends in the critical Northeast Asian area. 



Boma 215 

In this instance, a close ally's rights are directly threatened by the North Korean 
claims. The North Korean military boundary zone represents renewed pressure 
on the South's efforts to maintain the lifeline to the Northwest Islands and could 
ultimately serve as a pretext for an attack upon the resupply vessels and the islands 
themselves. 

While not particularly significant in terms of population, natural resources or 
potential economic development, these islands are of incalculable political 
significance to both countries. These outposts are the exposed nerves of South 
Korean sovereignty and territorial integrity. By asserting navigational freedoms 
within the North Korean east coast military boundary zone, we not only uphold 
important international principles which are essential to our own security, but 
also voluntarily shoulder the burden with our steadfast friends in the South, who 
must, of necessity, regularly run the gauntlet on the west coast. This should 
alleviate significant pressure on the South. Similarly, Japan has chafed at the North 
Korean actions and would undoubtedly welcome reasonable efforts to check the 
bullying thrust of these claims, the effects of which fall heavily on them. The 
reaction from the mainland is difficult to gauge, but China is unlikely to protest 
this effort, due to estrangement from Kim Il-Sung's regime. While no reaction 
is the expected and desirable response, the Chinese will see this as a sign of 
renewed U.S. resolve in the region. The Soviets would probably align verbally 
with Pyongyang. 

General Recommendations Regarding the FON Program 

In this writer's opinion, the following issues dealing with the general conduct 
of the FON Program should be addressed to ensure the continuing vitality of 
this essential component of national defense. 

Emphasis on Assertion vice Provocation. The purpose of the Freedom of 
Navigation Program is to conduct peaceful challenges to unlawful encroach- 
ments upon the maritime commons by coastal nations and to stem the attempted 
seaward expansion of national sovereignty. While these challenges, of necessity, 
normally involve Department of Defense vessels or aircraft in most instances, it 
is essential that operational planners understand and maintain the true innocent 
and unpro vocative nature of these operations. 

Prevailing domestic and international public perceptions of the FON Program 
seem to be that the program is usually employed as a subterfuge for setting up 
engagement scenarios with nations that have aroused our ire over unrelated 
matters. Although understandable, these conclusions are dead wrong and entirely 
at odds with the true spirit and nature of this program. 



21 6 Readings on International Law 

FON Program Results Should be Declassified and Published. The records of 
actual FON assertion operations are presently classified* While prospective FON 
projects need this protection for obvious security of own forces considerations, 
the same case cannot be made for past operations. 

If one accepts the adverse possession analogy that is proffered, the actual 
successful challenge of an excessive claim is of little practical use if the interna- 
tional community and, conceivably, even the nation challenged are not aware 
of it. FON activities are not aimed simply at our adversaries, but are asserted 
worldwide against friend and foe alike. Unfortunately, because of the classifica- 
tion level, the only public knowledge of these activities focuses on those instances 
where a state chooses to respond in a hostile manner and the media pick up the 
trail. 

While the annual publication of FON results might annoy our friends and 
further antagonize our foes, it would serve several very positive, important 
functions. First, it would demonstrate the evenhanded implementation of this 
program. Also, it would publicly document actual usage of the disputed areas, 
thereby demonstrating active nonacquiescence in the face of an excessive claim. 
The inherent balance and peaceful intentions of the program would be evident 
and avoid the "confrontational only" reporting bias, for which the media cannot 
be blamed in light of the security restrictions. 

Public Education. Naval officers, and others with expertise in this field, need to 
shoulder the responsibility of educating the public and policymakers on the 
important issues at stake in this arena and on the FON Program's peaceful aims 
in the face of these excessive and illegal maritime claims. The release of historical 
FON assertion data would contribute immeasurably to this process, which would 
hopefully culminate in public understanding, appreciation and support of this 
vital program. 

A recent example is illustrative of the present problems in this area. In a 
front-page article reporting the February 1988 "bumping incident" in the Black 
Sea, a respected reporter commented: "The United States destroyer Caron and 
cruiser Yorktoum, sailing 7 to 10 miles off the Crimean peninsula Friday, had 
entered the 12-mile limit claimed by the Soviet Union. The Pentagon said the 
exercise was part of a Navy policy of asserting the right of passage in waters 
exceeding the 3-mile territorial limit [sic] recognized by the United States. 

"When the American ships failed to respond to an order to leave, they were 
scraped by Soviet warships. ..." 

Several problems leap out of this text. First, this is not a Navy, but a national 
program ordered by the President. Second, although the United States then had 
a 3-mile territorial sea, we recognize the right of a nation to establish up to a 
12-mile territorial sea. That is not the issue! What was being asserted here was 
"innocent passage," which is preserved within the confines of a nation's territorial 



Boma 217 

sea. In fairness to the reporter, it cannot be determined whether the errors 
emanated from him or from the Pentagon briefer. In any event, the message was 
garbled in transmission, and this probably served to reinforce public perceptions 
that the FON Program is merely a convenient vehicle for antagonizing the 
Soviets. If nothing else, it highlights the need for better dissemination of 
information about this program and the need for a concerted public education 
effort. 

Although there is substantial risk involved, the United States as trustee for the 
rightful owners of the maritime commons, the members of the international 
community of nations, should conduct physical, peaceful challenges to the 
excessive maritime claims represented by the North Korean military boundary 
zones. By patiently, but firmly, asserting these rights, we serve our national 
strategy, which is built upon three pillars; deterrence, forward defense, and 
alliance solidarity. We thus defend ourselves and our allies, while also ensuring 
that the interests of all nations in unencumbered access to these waters and the 
airspace above are safeguarded. 

To build long-term public confidence in and support for the overall goals of 
the FON Program, it is recommended that historical FON assertion data be 
published and that both uniformed members and the general public be educated 
as to the critical role which this program serves in carrying out our maritime 
strategy and, consequently, our national military strategy. 



Commander Boma was on the staffof the Naval War Colleges Center for Naval Warfare Studies 
at the time this article was first published. 



Notes 

1. Watkins, The Maritime Strategy, U.S. Nav. Inst. Proc. 5 (January 1986). 

2. U.S. President, Statement, "United States Ocean Policy and Exclusive Economic Zone of the United 
States of America," Weekly Compilation of Presidential Documents 383 (14 March 1983). 

3. Id. 

4. Id. 

5. U.S. Navy Dept., The Commander's Handbook on the Law of Naval Operations, Naval Warfare Publication 
9 (hereinafter NWP 9) (formerly NWIP 10-2), para. 1.4.2, at 1-5. 

6. U.S. President, Proclamation of 27 December 1988, "Territorial Sea of the United States," Weekly 
Compilation of Presidential Documents 1661 (2 January 1989). 

7. Id. at 1-12, n. 26. 

8. United Nations, United Nations Convention on the Law of the Sea, reprinted in United Nations conference 
on the Law of the Sea, Official Text, U.N. pub. sales no. E 83V.5, (hereinafter 1982 LOS convention) United 
Nations, New York, 1983, Arts. 17-26, at 6-9. 

9. Id., Art. 33, at 11. 

10. Id., Arts. 55-75, at 18-27. 

11. Id., Art. 87, at 30-31. 

12. NWP 9, paras 1.4.3-1.4.3.1, at 1-8, and 1982 LOS Convention, Arts, 46-54, at 15-18. 

13. Id., para. 2.3.4.1, p. 2-4, and 1982 LOS Convention, Art. 53, at 17. 

14. Id., para. 2.3.3.1, pp. 2-3 to 2-4, and 1982 LOS convention, Art. 52, pp. 16-17. 

15. Id., paras. 2.3.3.2 and 2.3.4.2, at 2-4 to 2-5, and 1982 LOS convention, Art. 45, 13, Art. 52, at 16-17. 



218 Readings on International Law 

16. Id., para 2.1, at 2-1, and 1982 LOS Convention, Am. 29-32, 95, 102, 107, 110, 111(5), 224, 236, 
298(l)(b) (military aircraft). 

17. U.S. Foreign Broadcast Information Service (FBIS), North America and Asia-Pacific and the Development 
of the Law of the Sea: The Democratic People's Republic of Korea, "The Report on the Decree of 22 June 1977, on 
Establishing Economic Sea Zone," at 3-4, issued February, 1981. 

18. U.S. Dept. of Defense, Assistant Secretary of Defense (International Security Affairs), Maritime Claims 
Reference Manual (Washington), v. II, at 2-252 to 253. 

19. FBIS, supra n. 2, at 5-6. 

20. Park, 77ie 50-Mile Military Boundary Zone of North Korea, Am. J. IntT L. 72, 867, n. 5 (October 1978). 

21. Notice to Mariners 39/86, 27 September 1986, at IH-2.32. 

22. 1982 LOS Convention, Art. 5, at 3. 

23. Id., Art. 7(1), at 4. 

24. Id. 

25. Notice to Mariners 39/86, at III-2.32. 

26. 1982 LOS Convention, Art. 10, at 4-5. 

27. Id., Art. 8, at 5. 

28. Park, supra n .20 at 867, n. 3. 

29. Maritime Claims Reference Manual, at 2-252 and 1982 LOS Convention, Art. 3, at 3. (Provided for a 
12-nautical mile territorial sea drawn "in accordance with this convention.") 

30. Id. 

31. Park, supra n. 20 at 866. 

32. Alexander, Principal Investigator, Navigational Restrictions within the New LOS Context; Geographical 
Implications for the United States, C-0276, Offshore Consultants, Inc., Peace Dale, Rhode Island, (1986), at 303. 

33. 1982 LOS Convention, Arts. 25(3), 45(2) and 52(2), at 9, 14 and 16-17. 

34. Id., Arts. 2(1), 8(1), at 3-4. 

35. Park, supra n. 20 at 867. 

36. Id. at 869. 

37. Id. at 867. 

38. Id. at 873. 

39. Id. 

40. MIDDLEBROOK, OPERATION CORPORATE: THE STORY OF THE FALKLANDS WAR, 1982 
143-145 (1985). 

41. Park, supra n. 20 at 872. 

42. Id. at 868. 

43. U.S. Dept. of Defense, Report of the Commission on Integrated Long-Term Strategy, Discriminate 
Deterrence (Washington: U.S. Govt. Print. Off., January 1988), at 3. 

44. Id. at 9-10. 

45. Park, supra n. 20 at 869. 

46. CRIBBET, & JOHNSON, CASES AND MATERIALS ON PROPERTY 136 (1978). 

47. 1982 LOS Convention, Art. 19, at 6-7. 

48. Park, supra n. 20 at 869, n. 11. 

49. Taubman, Moscow Blames U.S. for Incident Between Warships in Black Sea, The New York Times, (14 
February 1988), at 1:4-5. 

50. Watkins, supra n. 1 at 4. 



Chapter 1 6 

America's Maritime Boundary 
With the Soviet Union* 



John H. McNeill 



During last year's Washington Summit meetings between President Bush 
and Soviet President Gorbachev, a historic agreement was signed by 
which, for the first time, the United States and the Soviet Union registered their 
mutual accord on a maritime boundary. 

This new agreement was signed on 1 June 1990 by Secretary of State Baker 
and Soviet Foreign Minister Shevardnadze, and both signatories have been fully 
applying its provisions since 15 June 1990. 

Accordingly, the two nations have now established a maritime boundary for 
all purposes. The new boundary extends from the North Pacific Ocean through 
the Bering Sea and Straits into the Chukchi Sea, and terminates in the Arctic 
Ocean after traversing a distance of some 1 ,800 nautical miles, making this the 
world's longest maritime border. 

The successful conclusion of negotiations between the two parties was roughly 
contemporaneous with the widening of contacts and cooperation between them 
in the region; examples of this are the recent agreement on cooperation in 
maritime search and rescue, the agreement establishing a Joint Regional Com- 
mission for the Bering Straits area, and the agreement concerning mutual visits 
by inhabitants of the Bering Straits region. However, the maritime boundary 
agreement, unlike the others, was brought to fruition as the result of discussions 
between the neighboring governments that began almost ten years ago — during 
the difficult years of the Brezhnev era. 

As every American schoolchild knows, Alaska was purchased by the United 
States from Czar Alexander II in 1867. "Seward's Folly," as the $7,200,000 
acquisition was once derisively known, has long since been recognized as a 
remarkable coup by the United States. What is not often remembered, however, 
is that the 1867 Convention of Cession itself contained no provisions relating to 
establishment of a boundary per se. Instead, that agreement explicidy provided 
only for the cession by Russia to the United States of all territory and dominion 
possessed by the Czar "on the continent of America and in the adjacent islands," 

* Reprinted from the Naval War College Review Summer 1991. 



220 Readings on International Law 

and specifically established geographical limits solely with respect to the territory 
ceded. 

Even though the western limit of Alaska as defined in the 1 867 Convention 
was not clearly identified as a boundary line, at least one authoritative commen- 
tator so described it just after the turn of the century; at a minimum, it certainly 
performed the pragmatic function of a line of allocation, a cartographic device 
used to simplify description of the territory conveyed: i.e., Russia ceded to the 
United States everything it had east of the line and nothing west of the line. 
Since in 1867 the concept of dominion over adjacent continental shelf and seas 
beyond one marine league from the appurtenant coast was not recognized by 
international law, it is not surprising that no provision for a maritime boundary 
was made in the original Convention of Cession. 

During the ensuing years, and especially in recent decades, the line of 
allocation came, perhaps inevitably, to be understood by many as the practical 
equivalent of a boundary, i.e., as a line of division for maritime jurisdiction as 
well as land territory. Indeed, by the time the negotiations leading to the recent 
agreement were underway, the U.S. had come to regard the 1867 Convention 
line as the maritime boundary, and with respect to fisheries matters sought Soviet 
agreement to this position. Prior to the 1970s, the question of whether there 
existed a maritime boundary was principally of theoretical significance, since up 
to that time both the U.S. and U.S.S.R. had claimed only the customary three 
nautical mile territorial sea (with twelve nautical mile fishing jurisdiction from 
1964), and the U.S.S.R. had claimed a territorial sea out to twelve nautical miles. 
But in that decade, following the lengthy negotiations which resulted in the 1982 
United Nations Convention on the Law of the Sea, the world community 
recognized as a new principle of international law the concept of the Exclusive 
Economic Zone (EEZ). The Soviet Union initiated the regulation of a two 
hundred nautical mile fisheries zone in 1978 (and of its EEZ in 1976, pursuant 
to which it assumed the right to regulate fishing, marine scientific research, 
marine pollution, and certain other activities within its zone, which extends 
seaward as far as two hundred nautical miles beyond its territorial sea). The United 
States established a two hundred nautical mile fisheries management zone in 1977 
(declaring its EEZ in 1983, and its own twelve nautical mile territorial sea in 
1988). As a result of both nations having established these opposed fisheries 
regimes, it became evident that in a number of places the zone claimed by one 
side overlapped that claimed by the other. Consequently, the two governments 
agreed to discuss the exact location of the 1867 line. Thus, it was the immediate 
problem of fisheries enforcement that led in the late 1970s to the convening of 
negotiations which ultimately resulted in the 1990 Agreement on the Maritime 
Boundary. 

Early in these discussions it became apparent that the two sides had traditionally 
employed different cartographic techniques to depict the 1867 Convention line. 



McNeill 221 

U.S. practice had been to use orthodromic lines, arcs of great circles (which best 
approximate the shortest distance between points on the surface of the earth). 
Orthodromic lines appear straight on a conic projection of the Earth. Conversely, 
Soviet practice had been to use the rhumb line, or loxodromic curve, which is 
a line of constant compass bearing that appears straight on a mercator projection. 
In addition to these technical differences, there was disagreement over the 
geographic location of one of the points described in the 1867 Convention that 
is a basis of reference for drawing the Convention line. These differences resulted 
in assertions by each side that a certain chord-shaped area in the Bering Sea 
covering some 18,000 square nautical miles of ocean was on its side of the 
Convention line. 

As a predictable result of these overlaps, the fisheries authorities of both 
governments became involved, attempting to enforce their respective regulatory 
regimes throughout the entirety of what they conceived to be their own 
EEZ — including overlap areas. Indeed, some portions of the Soviet EEZ 
extended across the 1867 line, although it had appeared in 1977 that both sides 
were intending to use that line as the outer limit of their respective fisheries 
enforcement jurisdiction, at least with regard to areas lying within two hundred 
nautical miles of both sides* coasts. 

Tensions were inevitably created, an example of which is an incident in August 
1986. At that time, two Soviet ships threatened and tried to stop the Seattle-based 
fishing boats Katie K and Aleutian Mariner in the Bering Sea, in an area of EEZ 
overlap some 160 miles west of St. Matthew Island. The two U.S.-flag vessels 
fled the area, which contains rich Tanner crab fishing grounds, leaving behind 
expensive gear including some 150 crab pots worth perhaps $45,000; they were 
followed by the Soviet vessels for a reported one hour and forty minutes before 
the chase ended. In response, the 378-foot U.S. Coast Guard cutter Midgett — 
armed with two .50 caliber machine guns, a bow-mounted five-inch gun, and 
carrying an HH-52 helicopter 1 — was assigned to reenter the disputed area and 
escort the Katie K and Aleutian Mariner back to collect their equipment, a task 
accomplished without further trouble. 

Several confrontations of this kind have occurred in recent years and 
threatened to become serious irritants in the relationship between the U.S. and 
U.S.S.R. Now, however, both sides have agreed on a fundamentally logical basis 
for fishing rights and responsibilities in the area. This represents a welcome 
advance, and reinforces the progress reflected in the recent Governing Interna- 
tional Fishery Agreement signed by the two governments on 22 June 1988 and 
approved by Act of Congress later the same year. 

Separate issues are generated by the existence of an area of high seas in the 
central Bering Sea that is literally surrounded by the EEZs of the United States 
and Soviet Union but is included in neither, and is known as the "Doughnut 
Hole." This area, in the heart of the world's most productive fishing grounds, 



222 Readings on Internationa! Law 



contains vast but declining stocks of valuable bottomfish, especially pollock. The 
annual pollock yield of the Doughnut Hole, two million metric tons, is equal to 
that from U.S. Bering Sea EEZ waters in their entirety. The degree to which 
coastal states may protect migratory species such as pollock from third-party 
fishing on the high seas — such as by Japan and Poland in the Doughnut Hole — is 
as yet unresolved as a matter of international law. 

Another important factor for both governments was the need to delimit clearly 
those areas of their respective continental shelves lying beyond two hundred 




OMC JOHN MOHILA 



McNeill 223 

nautical miles from the coasts of either of them. The continental shelf in the 
Bering sea is the largest such area on Earth, and in addition to being unusually 
rich in crab and shellfish is also believed to be a potentially important area for 
hydrocarbon exploitation. 

One region of the Bering Sea continental shelf is of particular note and can 
serve to illustrate the complications for hydrocarbon exploration that have been 
generated by the boundary dispute: the Navarin Basin of the Bering Sea, a 
continental shelf zone roughly the size of Ohio. Lying some 250-300 miles off 
the Alaskan coast, it contains an EEZ overlap area roughly twenty-five miles 
wide and 225 miles long. This previously disputed zone lies on the western side 
of a 43,000 square-mile tract believed to contain significant oil and gas deposits. 
Water depths in the area range from 230 to 7,900 feet, although most of the shelf 
lies under less than six hundred feet of water. 

In March 1984, interest in the hydrocarbon potential of the basin was 
heightened by the discovery of a plume of natural gas spewing from the ocean 
floor almost in the middle of the then-disputed western portion of the tract. 17 
Soviet interest in oil in the region remained considerable, as had been 
demonstrated in an unusual manner during the summer of 1983 when a Soviet 
TU-95 "Bear" aircraft buzzed a test well some seventy-five miles east of the 
U.S.-claimed line and comfortably within the U.S. EEZ. 

In 1984, the U.S. Department of the Interior requested bids for potentially 
lucrative oil leases in the Navarin Basin tract. The U.S. Geological Survey had 
identified three geologic structures in the sale area that might contain oil. 
Estimates of reserves in the twenty-eight million acre tract had indicated that the 
Navarin held 1 .9 billion barrels of oil under waters less than two hundred meters 
in depth, and also 7.5 trillion cubic feet of natural gas in similar water depths 19 — 
substantial by "lower forty-eight" standards but still only a fraction of the Prudhoe 
Bay reserves on Alaska's North Slope. Because of the boundary dispute, the 
Interior Department placed in escrow the bids received for blocks of the tract 
lying in the disputed area, and no exploration was permitted to take place in that 
part of the Navarin. Finally, in December 1988, Interior returned some $30 
million in escrowed funds to Shell, ARCO, and AMOCO, at their request, 
because leases for the seventeen blocks in the disputed area for which bids were 
received had not been issued, due in part to continued uncertainty about the 
boundary. 

Now that a boundary settlement has been achieved, prospects have improved 
for U.S. and Soviet joint ventures in oil exploration and, later, exploitation in 
the Bering and Chukchi Seas. The Navarin Basin is again expected to become 
the focus of interest, although no commercial discoveries have as yet been 
made. 

Offshore drilling in the outer continental shelf off Alaska is not affected by the 
Bush Administration's decision in June 1990 to postpone offshore drilling in 



224 Readings on International Law 

00 

much of the rest of the U.S. continental shelf for up to ten years, and as a result 
it appears inevitable that U.S. oil exploration will become increasingly active in 
the North. Yet, as noted above, the Bering Sea is one of the world's most 
productive fishing grounds, attracting commercial salmon, pollock, and crab 
fishermen. The fear of environmental damage from oil spills has created concerns 
in Alaska and elsewhere in the region that these resources could be seriously 
damaged. Indeed, the Interior Department's program for leasing oil and gas tracts 
off the Alaskan coast — including outer continental shelf areas of the Navarin 
Basin — was enjoined for a time by a federal court on the grounds that the sale 
of such leases could result in interference with native Alaskan hunting and fishing 
rights. However, the U.S. Supreme Court disagreed with lower federal courts 
and in 1987 removed these legal barriers to the sale of leases, deciding that state 
protection of such native rights did not apply to the outer continental shelf. 

The dramatic development of the international law of the sea during the 
post- World War II era has resulted in the establishment of national rights to EEZs 
and the continental shelf. The first clear assertion of the principle that the 
contiguous continental shelf belongs to the coastal State was made by President 

OA. 

Truman's Proclamation of 28 September 1945. This was followed by a number 
of similar claims on the part of many other nations. By 1958, the international 
community confirmed, in the Convention on the Continental Shelf, the concept 
that coastal states enjoy certain rights over their contiguous shelves. By 1969, 
the International Court of Justice was able to describe these coastal State rights 
as "inherent," in its decision in the North Sea Continental Shelf Cases. 

The 1982 United Nations Convention on the Law of the Sea also indicates 
that the coastal state enjoys sovereign rights over all natural resources of its EEZ, 
including sea-bed resources. However, the well-known fact that the United 
States is not a party to that agreement does not in any way create a difficulty for 
the U.S. in asserting rights to its contiguous continental shelf. This is because the 
"inherent" rights recognized by the International Court of Justice is part of 
customary international law and as such can be claimed by every nation without 
regard to the Law of the Sea Convention — which in any case is not yet in force 
since it has not yet attracted the number of ratifications required. A second basis 
for its shelf claim is available to the United States in that the EEZ is also 
understood by the U.S. to be a right recognized under customary international 
law. As such, it exists separately and apart from the Law of the Sea Convention 
in the same way that the U.S. views many other important provisions of that 
convention, such as those relating to navigational matters, the twelve-mile 
breadth of the territorial sea, and the right to exploit mineral resources of areas 
of the sea bed beyond the limits of national jurisdiction. 

As a result, the U.S. and the U.S.S.R. have now agreed, as between 
themselves, that neither will make any claim to the continental shelf in the area 
beyond its maritime boundary with the other; that is, each side's shelf will be 



McNeill 225 

delimited by that boundary. Although the more usual practice in settling 
maritime boundaries of opposite States has been to agree upon the median line, 
i.e., a line equidistant from the nearest points of the opposing States' shores, this 
has not been a consistent international practice. For example, the 1974 Agree- 
ment between India and Sri Lanka on the Boundary in Historic Waters employed 
a modified median line to take into account "historical" factors. Equitable 
principles are always relevant, whether for territorial waters, EEZ, or continental 
shelf. However, the primary rule of international law is simply that delimitation 
should be made by agreement between the involved nations. U.S. policy 
mirrors these considerations: delimitations should be accomplished by agreement 
in accordance with equitable principles. 

As we shall see, in the 1990 U.S.-U.S.S.R. Agreement the parties did not 
choose to draw an altogether new maritime boundary. Instead, they elected to 
confirm the basic and historic division set out in the 1867 Convention, and to 
employ that basic line (with some relatively slight geographic diversions) as their 
maritime boundary for all purposes, including delimitations between themselves 
of the continental shelf and EEZ. 

Lurking in the background of the economic issues which arose from the 
overlapping claims in the Bering Sea, strategic questions have always been 
present. Certainly, access to the Bering Straits has for some time been an 
important strategic requirement for the navies of both the U.S. and U.S.S.R. Of 
course, the lack of an agreed maritime boundary in the area did not serve as a 
major disincentive to otherwise necessary operational activities (e.g., the U.S.- 
Allied PACEX '89 exercise in nearby North Pacific waters, the largest series of 
joint-combined exercises in the area since World War II), if only because, 
beyond the territorial sea, delimitation has no effect upon navigational rights and 
freedoms. Nevertheless, it is clear that the confirmation of the location of the 
boundary has the effect of enhancing strategic stability between neighbors, and 
creating the conditions necessary to strengthen that relationship. As Robert Frost 
has well noted, "good fences make good neighbors." 

The U.S.S.R. had some additional reasons why it wanted to resolve the 
boundary question. The Soviets were reportedly quite concerned about estab- 
lishing negative precedents which might affect the outcome of similar negotia- 
tions with the Norwegian government involving a disputed portion of the 
Barents Sea, which controls routes to some of the most important and largest 
naval bases in the Soviet Union. The Kola and White Sea coasts are currendy 
the best basing areas for Soviet SSBNs, and the adjacent Arctic waters constitute 
the optimal operational concealment and launching stations for these strategic 
forces. Thus a majority of Soviet SSBNs, some sixty percent of the total force, 
are based here. 

Intimately related to this capability is the reality that among the most important 
Soviet naval objectives in any future world conflict would be the seizure of lines 



226 Readings on International Law 

of communication linking the Arctic Basin with the North Pacific. Such control 
would enable Soviet Northern Fleet and Pacific Fleet submarines to reinforce 
each other without interference along interior lines of operation. Soviet naval 
literature, such as the influential Morskoy sbomik, emphasizes the key importance 
of controlling access to chokepoints such as the Bering Straits. Soviet 
capabilities to project naval forces through this region are undoubted. 
Moreover, modern Soviet SSBNs no longer need to run the gauntlet of U.S. or 
NATO antisubmarine warfare barriers, since those in the Northern and Pacific 
Fleets have long-range SLBMs which permit them to patrol in bastions close to 
the Soviet northern coasts. 

Arctic bastions, of course, offer the additional protection of shallow waters, 
reducing the advantage enjoyed by U.S. SSNs, as well as of partial ice cover, 

■%rt 

which limits antisubmarine warfare operations by aircraft or surface vessels. The 
ice pack also provides some protection from sea surveillance, and its ambient 
noise and currents interfere with detection by underwater electronics (sonar), 
acoustics (sound), and magnetic anomalies. The Typhoon class SSBN was 
designed specifically for operation in ice-covered waters. This capability is now 
challengeable by the newer-production Los Angeles-ch&s attack submarines 
starting with the USS Chicago (SSN-721), commissioned in 1986 and fitted with 
bow-mounted retractable diving planes and other features for under-ice opera- 

39 

tions. 

The new boundary agreement confirms that the U.S. has succeeded in 
maintaining uneroded access to the Bering Straits and preserving its freedoms to 
operate in the Bering and Chukchi Seas, as well as in the North Pacific and Arctic 
Oceans. This reinforces standing U.S. Arctic policy, which lists as a primary 
requirement the protection of essential U.S. security interests in the Arctic 
region. Indeed, the Arctic Research and Policy Act of 1984 makes clear that, 
in the view of Congress, "as the Nation's only common border with the Soviet 
Union, the Arctic is critical to national defense." In conformity with this 
principle, the U.S. was mindful that no precedent be set in the negotiations that 
would support the unilateral claims advanced by Soviet theorists to a "sector" of 
the Arctic stretching from their northern coasts to the pole itself. Although it is 
unclear whether the Soviet Union has ever officially embraced this theory, the 
U.S. has consistendy taken care to oppose all such claims, including those made 
by allies such as Canada. It need hardly be emphasized that high seas freedoms 
to operate on, over, and under the ocean areas of the Arctic are of paramount 
importance to the U.S. strategic posture, whether for deployment of SSBNs or 
for overflight by B-52s and other U.S. strategic forces. 

What does the new agreement specifically provide? First, it makes clear that 
the new boundary will generally follow the course of the 1867 line of division, 
pursuant to the desire of the parties to "split-the-difference" between their 
competing projections of the 1867 line in the Bering Sea and the consequent 



McNeill 227 

overlaps of EEZ areas. Adoption of such an equitable and pragmatic approach 
led to results that have been welcomed by observers such as the chairman of the 
American Section of the International North Pacific Fisheries Commission, Mr. 
Clement Tillion, who observed, "neither side can say they beat anybody out of 
anything. It's a very nice agreement." 

The new agreement defines the limits within which each signatory may 
exercise territorial sea or EEZ jurisdiction in those areas where its claimed twelve 
nautical mile territorial seas or two hundred nautical mile EEZ would otherwise 
overlap the other's or remain in dispute. It also delimits, as between the parties, 
the continental shelf jurisdiction beyond two hundred nautical miles from their 
respective coasts that they may exercise in accordance with international law, in 
the Arctic Ocean, Bering, and Chukchi Seas, and a portion of the North Pacific 
Ocean. 45 

As President Bush stated in his letter transmitting the new agreement to the 
Senate for its advice and consent to ratification: "I believe the agreement to be 
fully in the United States interest. It reflects the view of the United States that 
the maritime boundary should follow the 1867 Convention line." 

Indeed, this is made clear in Article 1 of the agreement. Article 1 also contains 
the explicit statement that each party is to respect the boundary as limiting its 
coastal state jurisdiction. This means of course that neither side will attempt to 
manage offshore resources in areas on the opposite side of the boundary. 

Article 2 of the agreement contains the legal description of the boundary. It 
is essentially the same as the line of allocation set forth in the 1867 Convention. 
Thus, the boundary proceeds from the point in the Bering Strait midway between 
Big (U.S.S.R.) and Little (U.S.) Diomede Islands due north as far as permitted 
under international law — for example, the U.S. EEZ terminates in the Arctic 
Ocean at about seventy-four degrees north latitude, close to the southern edge 
of permanent pack ice. (U.S. continental shelf jurisdiction may extend further 
north: see map.) South of the Bering Strait, the boundary extends generally 
southwestward to 167 degrees east longitude, terminating southwest of the 
Aleutian Island chain at a point lying slightly over two hundred nautical miles 
from both Soviet and U.S. territory. 

Article 3 is a novel provision, and the first example known of the technique 
employed: the transfer by each party to the other of the right to exercise 
EEZ-derived sovereign rights and jurisdiction (which only the transferor would 
otherwise have been entitled to exercise) in "Special Areas" established by the 
agreement. Why was this done? — to avoid enlarging the high seas area of the 
"Doughnut Hole." This would have been the outcome had the parties failed to 
take into account those cases in which either of them had (or could have) asserted 
EEZ-derived rights across the 1 867 line in locations where there were no overlaps 
with the EEZ of the other party. The result would have been the cutting off or 



228 Readings on International Law 

prevention of EEZ claims in these areas, thus placing the fisheries resources 
therein outside the jurisdiction of both parties. 

The map shows that of the Special Areas created, several, designated "Eastern,'* 
involve Soviet-origin areas and one, designated "Western," involves an area of 
U.S. origin. It is clear that the transfer of such rights and jurisdiction is complete 
for the duration of the agreement. Moreover, in effecting such transfer, neither 
side is ceding any part of its EEZ to the other, nor is either side extending its 
own EEZ. To emphasize the non-EEZ nature of the Special Areas, each 
administering party will be obliged to ensure that its laws, legislation, and charts 
distinguish such areas from its EEZ. 

Of final note, Article 6 calls for any dispute over interpretation of the 
agreement to be resolved by negotiation or other peaceful means agreed between 
the parties. This represents a step forward in terms of the willingness of the two 
nations to contemplate various means of dispute settlement. In most modern 
U.S. -Soviet agreements — for example, those in the sphere of arms control — dis- 
putes have been confined to bilateral diplomatic channels, usually within a 
consultative body established for the specific purpose. The mutual willingness 
shown in the boundary agreement to give consideration to the full range of 
mechanisms available to deal effectively with disputes (including, at least in 
theory, both arbitration and judicial settlement) is a positive development. 

What happens next? To complete the process, each side must ratify the 
agreement through its own constitutional requirements. For the U.S., this will 
involve the advice and consent of the Senate; for the U.S.S.R., the Supreme 
Soviet must signify its assent. During the interim, however, the agreement will 
remain in force provisionally, perhaps for many years, pursuant to the Baker- 
Shevardnadze Exchange of Notes. Meanwhile, the world's longest maritime 
boundary can be expected to gain recognition as powerful, practical evidence of 
the strengthened stability that results from the positive application of international 
law by the U.S. and U.S.S.R. to the solution of mutual problems. 



Mr. McNeill held the Charles H. Stockton Chair oflnternational Law at the Naval War College 
during the 1990-91 academic year when this article was first published. 



Notes 

1. Agreement Between the United States of America and the Union of Soviet Socialist Republics on the 
Maritime Boundary, with Annex, signed at Washington, June 1, 1990. U.S. Senate, 101st Cong., 2d Sess., 
Treaty Doc. 101-22. Reproduced in I.L.M. 942-945 (July 1990), (hereinafter cited as Treaty Doc. 101-22). 

2. Exchange of Notes between Soviet Foreign Minister Shevardnadze and Secretary of State Baker dated 
June 1, 1990 (unpublished). The agreement has been submitted for advice and consent of the Senate to its 
ratification (but see also note 47, below). The Exchange of Notes establishing interim application is consistent 
U.S. practice, e.g., with regard to the maritime boundary agreements with Cuba, signed 16 December (and 
subsequent Exchange of Notes, 26 December 1989), and also with Mexico, signed 4 May 1978. 

3. See map. 



McNeill 229 

4. Agreement Between the United States of America and the Union of Soviet Republics Concerning 
the Bering Straits Regional Commission, signed at Jackson Hole, Wyoming, September 23, 1989, I.L.M. 
1429-1433 (November 1989). Agreement between the United States of America and the Union of Soviet 
Socialist Republics concerning Mutual Visits by Inhabitants of the Bering Straits Region, signed at Jackson 
Hole, Wyoming, September 23, 1989, I.L.M. 1424-1428 (November 1989). Agreement Between the United 
States of America and the Union of Soviet Socialist Republics Concerning Maritime Search and Rescue, signed 
at Moscow, U.S.S.R., May 31, 1988 (unpublished). 

5. Article II states: "The western limit within which the territories and dominion conveyed, are contained, 
passes through a point in Behring's straits on the parallel of sixty-five degrees thirty minutes north latitude, at 
its intersection by the meridian which passes midway between the islands of Krusenstem of Ignalook, and the 
Island of Ratmanoff, or Noonarbook, and proceeds due north, without limitation, into the same Frozen ocean. 
The same western limit, beginning at the same initial point, proceeds thence in a course nearly southwest, 
through Behring's straits and Behring's sea, so as to pass midway between the northwest point of the island of 
St. Lawrence and the southeast point of Cape Choukotski, to the meridian of one hundred and seventy-two 
degrees west longitude; thence, from the intersection of that meridian, in a southwesterly direction, so as to 
pass midway between the island of Attou and the Copper island of the Kormandorski couplet or group in the 
North Pacific ocean, to the meridian of one hundred and ninety-three degrees west longitude, so as to include 
in the territory conveyed the whole of the Aleutian islands east of that meridian." Convention Between the 
United States of America and His Majesty the Emperor of all the Russias Concerning the Cession of Alaska, 
signed at Washington, March 20, 1867. 11 BEVANS, TREATIES AND OTHER INTERNATIONAL AGREE- 
MENTS OF THE UNITED STATES OF AMERICA 1776-1949 1216-1219 (1984). 

6. l Moore, a digest of international Law 475 (1906). 

7. The Alaska cession treaty is a classic example of this technique: Delimitation of Seaward Areas Under 
National Jurisdiction, Am J. Int'l L. 240 n.2 (April 1951). 

8. Secretary of State Baker's Letter of Submittal, Treaty Doc. 101-22, at v. For further background on 
this point, see Antinori, The Bering Sea: A Maritime Delimitation Dispute between the United States and the Soviet 
Union, 1 Ocean Dev. & Int'l L. 24-26 (1987). 

9. Treaty Doc. 101-22, at 5. 

10. Id. atvi. 

11. Smith, The Maritime Boundaries of the United States, The Geographic Review 405 (October 1981). 

12. Associated Press, 9 August 1986; United Press International, 10 August 1986; Alaska Bear, (July-Sep- 
tember 1986) (published by the USCG Seventeenth District). 

13. Submitted to Congress pursuant to the requirements of the Magnuson Fishery Conservation and 
Management Act, Public Law 94-265, Title II, sec. 203; the agreement was approved by sec. 1 of Public Law 
100-629, 7 November 1988. The agreement provides opportunities for fishermen from each country to conduct 
fisheries activities on a reciprocal basis in the other country's waters: see President Reagan's Message to Congress 
transmitting the U.S.-Soviet Fishery Agreement, Weekly Compilation of Presidential Documents, 846 (22 June 
1988). 

14. Holmes, Ship to Shore, Alaska Business Monthly 54 (March 1990). 

15. See U.S. House of Representatives, Committee on Foreign Affairs, Subcommittees on Human Rights 
and International Organizations and on International Economic Policy and Trade, 100th Cong., 2d Sess., 
Hearing on Oversight of the U.S. and U.S.S.R. Fisheries Agreement, 29 June 1988, pp. 1-2. See also Miles & Burke, 
Pressures on the United Nations Convention on the Law of the Sea of 1982 Arising from New Fisheries Conflicts: The 
Problem of Straddling Stocks, 4 Ocean Dev. & Int'l L. 343-357 (1989). The U.S. Government reportedly rejected 
a call for unilateral extension of jurisdiction beyond two hundred nautical miles to permit management of such 
stocks (Miles & Burke at 349). 

16. AIMS issues draft ElSfor Navarin Area, Oil & Gas Journal 27 (18 June 1990). 

17. MacLeod, Oil lease offering in U.S.-Soviet disputed waters, United Press International (16 April 1984). 

18. Id. 

19. Prescott, The Maritime political Boundaries of the World 250 (1985). The current 

estimate of the Minerals Mining Service, Department of the Interior, has been revised downward, indicating 
that the basin's resource potential is about 1.1 billion barrels. (Letter from Mr. George Carpenter, MMS, to 
the author, 5 June 1991.) 

20. Oil & Gas Journal 4 (16 July 1990). 

21. Anderson, "No ordinary voyage — U.S., Soviet scientists working on pact to explore Arctic seas for new oil 
deposits," Seattle Times, (1 July 1990), p. El. Interest persists despite the fact that during winter most of the 
Bering Sea shelf is ice-covered. Sharma, Geological Oceanography of the Bering Shelf, in HERMAN, MARINE 
GEOLOGY AND OCEANOGRAPHY OF THE ARCTIC SEAS 141 (1974). 

22. Oil & Gas Journal 26 (2 July 1990). 

23. Amoco Production Co., el al v. Village ofGambell, et al., 480 U.S. 531; 107 S. Ct. 1396; 94 L. Ed. 2d 542 
(1987). 



230 Readings on International Law 

24. Proclamation No. 2667, Policy of the United States With Respect to the Natural Resources of the Subsoil and 
Sea Bed of the Continental Shelf Code of Federal Regulations, Tide 3, 67-68 (1943-48 Compilation). 

25. 15 U.S.T. 471; T.I.A.S. 5578; 499 U.N.T.S. 311. 

26. International Court ofjustice, Reports 1969, p. 23, (Judgment of 20 February 1969; Fed. Rep. of Germany 
v. Denmark, Fed. Rep. of Germany v. Netherlands). 

27. 1982 LOS Convention Art. 56.1(a). See also CHURCHILL & LOWE, THE LAW OF THE SEA 137-140 
(1988). 

28. See Proclamation 5928 of 27 December 1988, Territorial Sea of the United States of America, 54 Fed. 
Reg. 777, (9 January 1989). 

29. CHURCHILL & LOWE, supra n. 27 at 154-158. 

30. Smith, supra n. 11 at 410. 

31. Horiguchi, Big US Show of Strength, Pacific Defense Reporter 43 (February 1990); Air Force Magazine 
81 (May 1990). 

32. The Severodvinsk shipyard currendy builds the DELTA-IV SSBN and OSCAR-II SSGN nuclear- 
powered submarines. U.S. Nav. Inst. Proc. 126 (January 1991). 

33. Ries, "Soviet Military Strategy and Northern Waters," in ARCHER, THE SOVIET UNION AND 
NORTHERN WATERS 91 (1988). The Northern Fleet headquarters at Severomorek is currendy thought to 
be responsible for some sixty-four SSBNs and SSGNs and perhaps eighty more general-purpose submarines. 
(International Institute for Strategic Studies 39 The Military Balance 1990-1991 (1990). 

34. Petersen, Soviet Military Objectives in the Arctic Theater, Naval War College Review 3 (Autumn 1987). 

35. Id. at 8, quoting Morozov & Krivinskiy, The Role of Straits in the Modem War, Morskoy sbornik [Naval 
Digest] (August 1982). 

36. See, e.g., Egan & Orr, Sea Control in the Arctic: A Soviet Perspective, 76 Naval War College Review 
(Winter 1988). 

37. Lindsey, Arctic Perspectives From Different NATO Viewpoints, NATO's Sixteen Nations, 54 (November 
1988). 

38. Larson, United States Interests in the Arctic Region, 2 Ocean Dev. & Int'l L. 170, 190. 

39. Atkeson, Fighting Subs Under the Ice, U.S. Naval Institute Proceedings 83 (September 1987); SHARPE, 
JANE'S FIGHTING SHIPS, 1990-91, 724 (1991). 

40. Report of the Interagency Arctic Policy Group, Dept. of State Bulletin 89 (July 1983). 

41. Public Law 98-373, sec. 102(a)(2). 

42. BUTLER, NORTHEAST ARCTIC PASSAGE 71-75 (1978). 

43. Treaty Doc. 101-22, p. vi. 

44. Nelson, Maritime Boundary, Associated Press Dispatch, 19 June 1990. 

45. Treaty Doc. 101-22, at v. 

46. Id. at iii. 

47. Hearings were scheduled to be held before the Committee on Foreign Relations, U.S. Senate, on 13 
June 1991, as this article went to press. 



Chapter 1 7 

The Kuriles: 
Passage or Obstruction to Regional Peace? 5 

Lieutenant Commander Rex M. Takahashi, U.S. Coast Guard 



There is much talk these days about a new world order and the post-Cold 
War era. In the relationship between the economic superpower Japan and 
the military superpower Soviet Union, however, not much has changed. This 
past April President Gorbachev visited Japan for three days of talks with Prime 
Minister Kaifu. Fifteen agreements were signed. These covered subjects ranging 
from trade fairs and cultural centers to air rights and fisheries accords. As to the 
basic political and military relationship, however, a peace treaty formally ending 
World War II between the two countries remains unsigned. 

At the respective national strategy levels of the Soviet Union and Japan, a 
mutual coldness persists. While a great deal of geopolitical change has occurred 
in central Europe over the past two years, the same is not true in Asia. The forces 
of the traditional superpowers, as represented in the Soviet Far East TVD 
(Theater of Military Operations) and in the U.S. Pacific Command, remain in 
their adversarial posture. The size of forces may change in accordance with 
"indications and warning" assessments, but the geopolitical relationships remain 
the same between the U.S.S.R., Japan, and the United States. It is, in an odd 
way of thinking, a comfortably stable condition in which all the country-actors 
know their roles. 

Product, symbol, and possible catalyst for change in the affairs of the three 
countries are the Kurile Islands — or "Northern Territories,*' as the southern four 
islands are referred to in Japan. The dialogue on sovereignty over these islands is 
between the Soviet Union and Japan, but any change will dramatically alter the 
military strategic picture for the United States as well. 

Where Are the Kuriles? 

The Kuriles form a chain of thirty-two islands stretching between Hokkaido 
and the Kamchatka Peninsula. David Rees, in his book on the Soviet seizure of 
the Kuriles, states that postwar Japan considered its lost Northern Territories to 
consist of the en tire Kurile chain and geographically separate south Sakhalin. 

* Reprinted from the Naval War College Review Autumn 1991. 



232 Readings on International Law 

However, since the 1960s the Japanese government has limited its definition of 
the North Territories (Hoppo Ryodo) to comprise only four islands: Kunashiri 
Island, Etorofu Island, Shikotan Island, and Habomai (actually the Habomai 
group of smaller islands). 

Unless otherwise stated, the term Kuriles in this article refers to the entire 
island chain, while Northern Territories will be used to refer to the islands 
involved in the present Soviet-Japanese sovereignty issue. 

Raj an Menon and Daniel Abele describe the Kurile archipelago as a Soviet 
"protective barrier fencing off the Sea of Okhotsk from the Pacific Ocean," 
which in the hands of an adversary "is a restrictive cordon sanitaire with the 
potential to complicate further the adverse climatic and geographical circumstan- 
ces faced by the Pacific Fleet based in Vladivostok." 

The Kuriles have the appearance of a terrestrial version of Orion's shield. 
Research by Michael Thompson has found the archipelago to be described by 
Soviet writers as a "1000 kilometer Cossack saber" and a Russian "screen of 
steel." Presently the Kurile Islands and Sakhalin form an administrative district 
{pblast r ) of the Soviet Far East Region of the Russian Soviet Federative Socialist 
Republic. Militarily, they lie in the Soviet Far East TVD. 

Ten miles of water separate the southernmost island, Kunashiri, from Cape 
Notsuke on Hokkaido. The Kuriles have excellent harbors from which to stage 
naval operations, as indeed Admiral Nagumo did at Etorofu in preparation for 
the 7 December attack on Pearl Harbor, and as General Gnechko did in 
completing the Soviet occupation of the Kuriles four years later in September 
1945. 

The Soviet-Japanese Gap in Thinking 

Historical Resentment. The Kuriles have been the scene of clashing interests 
between these nations for two centuries. John Stephan in his history of Sakhalin 
writes, when "the expanding frontiers of Russia and Japan met in Sakhalin and 
in the Kurile Islands at the beginning of the nineteenth century, the 'island 
country' Japan faced the problem of a contiguous land frontier with a foreign 
power (moreover a European power) for the first time in her history." Japan, 
Stephan writes, met this challenge by exploring, colonizing, and economically 
developing Hokkaido, the southern Kuriles, and southern Sakhalin. 

"Japanese historiography of the Kuriles sometimes resembles a mirror image 
of the Soviet view," writes David Rees. Soviets speak of "age-old" rights 
threatened by Japanese intrusion. Japanese authors claim the Northern Territories 
to be "inalienable" Japanese lands that are historically, legally, and culturally part 
ofjapan. 

Russia renounced its claim to the Kuriles in the 1875 St. Petersburg Treaty 
in exchange for the cession of Japanese rights on Sakhalin. The Treaty of 



Takahashi 233 

Portsmouth of 1905, which concluded the Russo-Japanese War, gave the 
southern half of Sakhalin, below the fiftieth parallel, to Japan. Fishing concessions 
off" the Kamchatkan coast were included as well. As David Rees observes, for 
"the next forty years Japan's tenure of the Kuriles and South Sakhalin was 
unchallenged." 

For Russia, the Japanese victory of 1905 was an insult to national dignity, and, 
as Man Kuraishi Home points out, the "paradox of the situation lay in the fact 
that until then Russia could assuage her own sense of inferiority vis-a-vis Western 
Europe with the certainty of her 'superiority* over the Asiatic nations, but it had 
been an 'Asiatic' fleet which had decimated the Imperial Navy at Tsushima." 

World War II brought a reversal in sovereignty over the Kuriles. Over and 
above the territorial dispute, however, there now runs a current of Japanese 
distrust and antipathy because of the manner in which that acquisition took place. 
At Yalta, Sakhalin and the Kuriles were made part of the agreement which 
resulted in Soviet entry into the war against Japan, though some historians 
contend that the United States stated only that it would support Soviet claims at 
a peace conference. Mari Kuraishi Home points out that the "Japanese may well 
feel that the Soviets did not deserve to be called victors" as they had achieved 
victory only indirectly, as a by-product of the war in Europe. 9 In any event, the 
Soviet Union militarily occupied the Kuriles by August 1945, and for them, it 
was a matter of conquest. 

Following the Japanese defeat, 570,000 Japanese prisoners of war were used 
as slave laborers in Siberia in the late 1940s, in what Bruce Stokes calls "an 
internment that violated international agreements and cost thousands their lives" 
and alienated an entire generation. 

The Japanese talk of Soviet treachery with regard to the loss of the Kuriles; 
the Soviets view the events as a reversal of the treachery inflicted upon Russia 
in the 1904 surprise attack on Port Arthur and the ultimate Russian defeat in 
1905. The Soviet Union takes the position that the Kuriles are a natural extension 
into the Pacific of its territory. The attitude is, as Stalin noted in his victory address 
to the Soviet people on 2 September 1945, that southern Sakhalin and the Kurile 
Islands would henceforth serve not "as a means to cut off the Soviet Union from 
the ocean or as a base for a Japanese attack on our Far East, but as a means to link 
the Soviet Union with the ocean and as a defensive base against Japanese 
aggression." 

Ideology ps. Economic Pragmatism. In most commentaries on Soviet-Japanese 
relations, historical antipathy is cited as the primary block to better relations. 
Countries, however, interact at various levels. Thus, while actions may actually 
be rooted in the national psyche, justification must often be built on a different, 
logical, basis. A country's nationalistic feelings undergo a metamorphosis in an 
attempt to provide the world, or at least itself, a rational explanation. 



234 Readings on International Law 




P. R. C. 



THE KURILES 



Jtrry Lon>oth« 



Takahashi 235 

Thus the Soviet Union's most basic ideological view of Japan, as noted by 
Myles Robertson, has traditionally been that it is a "member of a capitalist bloc 
wracked by continual contradictions between the growth rates of mutually 
dependent states and the necessity to co-ordinate economic policies on the one 
hand and the antagonism of state monopoly to the limitation and regulation of 
economics on the other." Robertson further comments that while the Soviet 
Union views the Japanese economy as a special point of friction between capitalist 
nations, the need to maintain the unity of imperialism's political-military bloc 
limits that friction. Soviet political theorists debate whether Japan is victim or 
accomplice of American imperialism in the Far East. Nevertheless, the basic view 
is that the relationship endures despite the friction. 

Just as the Soviet Union has trade relations with the countries of the capitalist 
west, it likewise conducts trade with Japan, some of it of long standing. In recent 
years this commerce "has revolved around the trading of energy resources of oil 
and coal, and timber in exchange for technology most directly required for the 
economic development of Siberia and the Soviet Far East." 14 Robertson notes 
that the Soviets have kept their demands and positions free from obvious 
influences of ideology, have pursued negotiations in a businesslike manner, and 
have steered a pragmatic course. 

Indeed, David Rees notes that in the late 1970s Japan was the U.S.S.R.'s 
second most important trading partner in the non-communist world, albeit in 
volumes accounting for only three or four percent of Japan's foreign trade. It 
should be noted that the 1970s was also the decade when the Japanese business 
community felt itself burned by certain investments in Siberia, which prevented 
any further swelling of fiscal optimism for the area. 

One has to question whether an expansion of the trade relationship is actually 
more stymied by asymmetrical levels of economic development or by political 
recalcitrance, which would of course bring us back to the Northern Territories 
issue. Prime Minister Kaifu, in an interview in the Soviet periodical New Times 
a year before the April summit, certainly gave the impression that the great 
stumbling block was the latter. Kaifu talked of problems to be settled in a 
significant order: the Northern Territories; concluding a peace treaty; normaliz- 
ing bilateral relations; and supporting perestroika and the introduction of a market 

15 
economy. 

The Soviet Union does, however, desperately seek to improve its economy. 

Prime Minister Kaifu addressed in the same interview the role of cooperation 

and economic prosperity in East Asia as the basis of regional political stability. At 

present, the Soviet Union needs an improved economy not only to join in that 

regional prospect but for its own domestic stability as well. The Northern 

Territories issue is the negotiating point that holds out the possibility for 

economic cooperation with Japan and broader economic participation in the 



236 Readings on International Law 




HOKKAIDO 



THE NORTHERN TERRITORIES 



J*fry Lorooth* 






Takahashi 237 

region — but that same issue also determines the military position of the Soviet 
Union in Northeast Asia. 

Strategic Importance of the Kuriles. The Kuriles is the gate protecting the Sea of 
Okhotsk. For the Soviet Pacific Fleet, the Sea of Okhotsk is the bastion for its 
Delta Ills and other SSBNs, the sea sanctuary for units deployed at Petropavlosk, 
and the passageway to and from the major military port of Vladivostok. For the 
U.S. Pacific Fleet, the Kuriles is the gate through which to launch an anti-SSBN 
campaign in this bastion. As Michael Thompson states, "the naval value of the 
Kuriles is found as much in the twenty navigable straits as in the islands 
themselves, linking the Sea of Okhotsk, Sakhalin Island, and the Pacific 
Ocean." 16 

Japan, of course, living under the protective umbrella of the U.S.-Japanese 
Security Treaty, sees its military interests as integral with those of the United 
States. The Japanese Self-Defense Forces (JSDF) can view the Kuriles as a 
two-way gate. Closure of the Kuriles by the JSDF can bottle up elements of the 
Soviet fleet in the Sea of Japan, making them vulnerable to allied destruction. 
On the other hand, closure of the Kuriles by Soviet forces would be part of a 
strategic option, as David Rees notes, of "enveloping and interdicting the sea 
lanes which sustain Japan and connect that country with its sources of energy 
and raw materials in the Middle East and North America. 

The Kuriles fall within the Soviet "sea control" zone — an area which the 
Soviets will seek to dominate in wartime. According to the 1989 Department of 
Defense (DoD) annual report, Soviet Military Power, sea control in the Sea of 
Okhotsk and the Sea of Japan "represents the Soviets' highest priority regional 
objective." 

Soviet ground forces in the Far East TVD are expected to be reduced in 
coming years, but not in the areas opposite Japan, in the Northern Territories, 
on Sakhalin Island, or on the Kamchatka Peninsula. According to the 1990 DoD 
annual report, the Soviet Pacific Fleet will remain relatively constant in the 1990s, 
but its amphibious lift capability will continue to grow. 19 Michael Thompson 
notes that the Kuriles could become an excellent platform for staging an assault 
on Hokkaido by "amphibious assault, parachute drop, heliborne assault, or a 
mechanized thrust across the 17 kilometer frozen channel (winter only) separat- 
ing Kunashir from Point Notsuke." 20 

The Japanese Defense Agency 1989 White Paper estimates the combined 
troop strength in the Northern Territories to be the equivalent of a division. 21 
A permanent military base exists on Itorup Island (Etorofu in Japanese) where 
MIG-23 Flogger aircraft are deployed; Shikotan has facilities for handling assault 
helicopters. The White Paper states, the "Soviet Union has brought into these 
islands not only weapons that are normally possessed by its divisions, such as 
tanks, APCs, various artillery pieces, anti-aircraft missiles and MI-24 Hind attack 



238 Readings on International Law 

helicopters, but also 130-mm cannons which usually do not belong to the 
equipment of a Soviet division." 

Facing this force on Hokkaido are four of the thirteen divisions of the Japanese 
Ground Self Defense Force. Behind this force stand the Japanese defense budget, 
which in 1990 amounted to a massive $29.7 billion, less only than those of the 
United States and the Soviet Union. In such a situation, an attempt to cross forces 
from the Kuriles appears highly unlikely, at least in the initial stages of hostilities. 

Soviet sovereignty over the Kuriles implies control of the gateway between 
Hokkaido and Kamchatka. One must, however, keep in view the prospect that 
combined U.S. and Japanese naval and air forces will wrest control of the Kuriles 
from the Soviet Union at the outbreak of hostilities. Additionally, the ar- 
chipelago, being of such great length, can not be made impenetrable to sub- 
marines attacking into the Sea of Okhotsk bastion. To give up the segment of 
the Kurile chain represented by the Northern Territories would undoubtedly 
weaken the Soviet defensive capability; the Soviets must weight for themselves 
the peacetime benefits that a compromise may provide compared to the ad- 
vantages that an intact island barrier will bring in the event of a putative future 
war. 

Meeting at the Crossroads, Status Quo Preferred 

President Mikhail Gorbachev was the first Soviet head of state to visit Japan. 
The results were predictable. The summit meeting paved the way for further 
high level cooperation on minor matters, but did little to solve the issue of the 
Northern Territories or arrive at a peace treaty now forty-five years past due. 
Since December 1988, there has existed at the vice-foreign minister level a 
working group on the peace treaty. Progress on the territorial problem, however, 
has always been blocked. Gorbachev and Kaifu played out at the summit roles 
carved deep in the pasts of their respective nations. 

That the Soviet Union has at least acknowledged the existence of a territorial 
dispute, however, is viewed as a positive sign. Prime Minister Kaifu stated last 
year in the New Times interview that it looked as if the Soviets would foist 
acceptance of "postwar realities" on the Japanese, but he recognized that different 
opinions, previously impossible to state publicly, had appeared in the Soviet 
Union. 

In this year of the Soviet-Japanese summit, Gorbachev has been regarded as 
the representative of the emerging "different opinions;" it came as no surprise 
that he could announce to the world that a territorial dispute did exist. That, 
however, was about as far as new thinking would emerge. In the Soviet Union, 
resurgent hard-liners opposed return of the islands. Among the reformers, Boris 
Yeltsin was reported as saying the Russians would not "do another Alaska" over 
the islands. 22 Soviet Defense Minister Yazov is reported to have insisted that all 



Takahashi 239 

four islands are vital to Soviet national security and can not be exchanged for 
Japanese economic aid. The implication is that the Soviet Union, though it has 
declared a military doctrine of "defensive sufficiency" that applies to Asia as well 
as Europe, notwithstanding does not intend to compromise its military super- 
power status in the East as it has in the West. 

Hiroshi Kimura observes that Soviet scholars who are realistic enough to 
consider the territorial issue an obstacle in improving Soviet-Japanese relations 
have been unofficially proposing compromise formulae. All the proposals revolve 
around Japan being allowed to use the territories joindy or unilaterally but with 
the Soviet Union retaining sovereignty. Kimura says such proposals are really 
meant to shelve the problem. 

The alternative to shelving the problem is to achieve an acceptable solution — 
and for the Japanese there is only one solution, the return of all four islands of 
the Northern Territories. What is to be seriously discussed is the terms of the 
return. As early as 1956 Japan was offered a compromise package for the return 
of the Habomai group and Shikotan, which together constitute seven percent of 
the disputed area. The proposal was turned down then, and was declined again 
in 1991 by a Japanese nation now even more confident of its place in the 
international arena. 

Kimura speculates that the Soviet Union will eventually decide to return all 
four islands to Japan. In 1988 Soviet spokesman Mikhail Titarenko had proposed 
the return of two islands upon conclusion of a peace treaty and agreement to 
postpone decision on the remaining two for the next generation. Though the 
Japanese found that idea unacceptable, what may be acceptable to Japan is return 
of the four islands on condition of demilitarization, using a Hong Kong-type 
formula in which two islands would be "returned upon the conclusion of a peace 
treaty" and "the remaining two by a definite deadline, say 1999." 25 Kimura states 
further that Japan would have to take into account the time and expense involved 
in evacuating Soviet civilians and withdrawing military bases from the islands, 
and that Japan, in cooperation with the United States, would work toward seeing 
that the strategic security of the Soviet Union in the Sea of Okhotsk would not 
become threatened. During the summit, no such large scheme was evident. 
Gorbachev only went so far as to propose as part of the joint declaration a "partial" 
reduction of Soviet military presence on the four islands. 

The crucial question is: why would the Soviet Union agree to return the 
Northern Territories? Observers form around two poles, economic and military. 
Kimura believes that what the "Soviet Union wants from Japan is more than the 
signing of a legal document, but rather a fundamental change among the Japanese 
in their attitude toward the Soviet Union" that in concrete terms would lead to 
"a long term, cheap-interest bank loan from the Japan Export-Import Bank, 
more active participation in joint enterprises and the 'special economic zone* in 
the Soviet Far East by huge Japanese corporations, Tokyo's endorsement of the 



240 Readings on International Law 

USSR's entry in the Pacific Economic Cooperation Committee (PECC), and 
so on. 

At the summit, Kaifu did not even mention an expected aid package of $450 
million to finance repayment of overdue Soviet debts to Japanese creditors; this 
would have wiped clean the debt slate and presumably would have instilled 
confidence for future Japanese investment. Even that $450 million pales in 
comparison to the $26 billion that some believed would be offered by Japan for 
retrocession of the islands. 

If a deal had been concluded, the next question would have been: what effect 
would retrocession of the islands have for the U.S.-Japanese alliance? Denis 
Warner, prior to the summit, had put forth the scenario that the threat of nuclear 
war has receded and that the extra security provided at the southern end of the 
Kuriles is no longer a strategic imperative for the Soviet Union. A deal with 
Japan, he foresaw, could create pressure against increased Japanese military 
budgets and give renewed emphasis to Japanese anti- Americanism, which would 
in turn challenge continued U.S. military presence and U.S. military bases. 
Warner, however, saw that scenario and any such resolution of the Northern 
Territories issue as highly unlikely, since to the Soviet Union "it would be 
tantamount to an acceptance that the world is no longer divided into two social 
adversary systems and that nothing should ever be done to lower the Soviet 
Union's guard." 

The converse to the "break Japan from the U.S." scenario is the "military 
abandonment by the U.S.," which the Japanese fear may occur as the Soviet 
threat further recedes with abandonment of the southern Kuriles. In this view, 
the Soviet threat to U.S. regional interests would disappear in the eyes of a 
majority of Americans, and, amidst American clamor over unfair trade arrange- 
ments and Japanese failure to carry their military fair share, Japan would lose the 
protective U.S. umbrella and find itself isolated. 

Suffice to say, the 1991 Soviet-Japanese bilateral talks ended without a Kuriles 
resolution; any illusions that the alliance between the United States and Japan 
would not remain "a centerpiece of our security policy and an important anchor 
of stability" should have quickly evaporated. The Kuriles stalemate has kept 
alive the regional status quo ante, and a cold relationship maintains itself in this 
corner of the post-Cold War world. A peace treaty with the Soviet Union 
remains unsigned. Soviet forces remain off Hokkaido. The submarine bastion's 
archipelagic shield remains intact under Soviet sovereignty. The sea passages 
between the islands remain subject to penetration by U.S. and allied attack 
submarines. 

Non-resolution of the Kuriles issue at the April summit was predictable; in a 
long-term perspective, however, it may not have been regrettable. As it is, the 
security alliance between the United States and Japan remains unchallenged by 
political aberrations that may have resulted on either side of the Pacific, from the 



Takahashi 241 

return of the Kuriles. The Soviet Union, for its part, did not commit itself to a 
cash deal that its population for the most part opposed and which, in future years 
with a different Soviet leadership, could have resulted in increased resentment. 
The search for an end to the Kuriles dispute can at least continue now in a region 
marked by stability and where the political doors now opening offer the promise 
of a lasting peace. 



Lieutenant Commander Takahashi was serving as the Executive Officer of the U.S. Coast Guard 
Cutter Mackinaw when this article was first published. 

Notes 

1. Weisman, Japan-Soviet Pact on Islands Elusive, The New York Times, (19 April 1991), p. Al. 

2. REES, THE SOVIET SEIZING OF THE KURILES at ix (1985). 

3. Menon and Abele, Security Dimensions of Soviet Territorial Disputes with China asd Japan, Journal of 
Northeast Asian Studies 12 (Spring 1989). 

4. Thompson, The Northern Territories: Case Study in Japanese-Soviet Relations, 26 (Unpublished Master's 
Thesis, Naval Postgraduate School, Monterey, Calif: 1982). 

5. STEPHAN, SAKHALIM: A HISTORY 5 (1971). 

6. Supra n. 2 at 5. 

7. Id. at 23. 

8. Home, The Northern Territories: Source or Symptom? Journal of Northeast Asian Studies 65 (Winter 
1989). 

9. Id. at 68. 

10. Supra n. 2 at 82. 

11. Stokes, Making Eyes at Moscow, National Journal 112 (20 January 1990). 

12. STEPHAN, THE KURIL ISLANDS: RUSSO-JAPANESE FRONTIER IN THE PACIFIC 170 (1974). 

13. ROBERTSON, SOVIET POLICY TOWARDS JAPAN: AN ANALYSIS OF TRENDS IN THE 1970'S 
AND 1980'S at 185. (1988). 

14. Id. at 153, 187. 

15. Ignatenko, Looking Back from the Year 2001: Perestroika and Prospects of Soviet-Japanese Relations, New 
York Times, (8-14 May 1990), 7-8. 

16. Supra n. 4 at 27-28. 

17. Supra n. 2 at 145. 

18. U.S. Department of Defense, Soviet Military Power 1989 IU (1989). 

19. U.S. Department of Defense, Soviet Military Power 1990 98 (1990). 

20. Supra n. 4 at 29. 

21. Japanese Defense Agency, White Paper: Defense of Japan, 1989; reprint, The Japan Times, Ltd. 

22. A Visit Dashed against the Rocks, 31 The Economist (20 April 1991). 

23. Delfs and Rowley, Far Eastern Economic Review 12 (2 May 1991). 

24. Kimura, The Soviet-Japanese Territorial Dispute, 7 The Harriman Institute Forum (June 1989). 

25. Id. at 8. 

26. Dahlburg and Helm, Soviets, Japan Both Fail to Get What They Want, Los Angeles Times, (19 April 
1991) A12. 

27. Supra n. 24 at 7. 

28. Japan , Gorbachev and The Price of Peace, The Economist 33 (30 March 1991). 

29. Warner, Chinese Card Today - the Japan Card Tomorrow? Pacific Defense Reporter 48 (May 1989). 

30. The phrase "a centerpiece of our security policy and an important anchor of stability" comes from the 
White House, 1990 National Security Strategy of the United States. 

31. A similar statement was made by Kazuo Chiba, former ambassador to the United Kingdom, in a 7 
December 1990 interview in London. He stated: "We don't want to get back those islands and then create a 
lasting dispute that is exploited by successive leaderships. We only want a deal if both sides realize that it is a 
good deal. If the Soviet Union disintegrates into chaos then the Slavs might think we have taken their land 
and we do not want that kind of festering dispute. We want whoever is the ruler of Russia to give back the 
islands in a lasting way." (See Japan and the New World Order, 4, no. 1, The Pacific Review 1-4 (1991). 



Chapter 1 8 

Diplomacy at Sea: 

U.S. Freedom of 

Navigation Operations 

in the Black Sea* 

William J. Aceves 



On 12 February 1988 the Commander in Chief of United States Naval 
Forces in Europe (CincUsNavEur) received the following message from 
the USS Yorktoum. At the time, the Yorktown and the USS Caron were conducting 
Freedom of Navigation operations in the Black Sea off the Crimean coast of the 
Soviet Union. "While conducting innocent passage south of Crimean Peninsula 
Yorktoum was deliberately shouldered by Soviet Krivak I FFG-081 1 (Bezzavetnyi) . 
Minor damage sustained to hull, no holing or risk of flooding. Two Harpoon 
missiles on port fantail launcher are damaged and unusable. CasRep [casualty 
report] follows. Amplifying info to follow.*' 

The Caron transmitted the following account of the incident to CincUsNav- 
Eur: "IncSea [incident at sea] violation. Mirka class FFL hull number 824 collided 
with Caron port side aft with no damage to ship or personnel at 0801 Z [10:01 
A.M. local]. Prior to collision, Mirka passed to Caron on channel 16 VHF 
[very-high-frequency voice radio] 'Do not violate State borders of the Soviet 
Union, I am authorized to strike. ' USS Yorktoum in company received similar 
warnings and has been struck by Stenka class patrol boat. Indications are that 
either or both units may be rammed again. Caron will maneuver to attempt to 
avoid further damage while maintaining Freedom of Navigation track." 

While neither U.S. vessel was severely damaged, the incident graphically 
displayed the dangers to American warships involved in those years in the U.S. 
Freedom of Navigation (FON) program. More importantly, it raised a variety 
of issues relating to the character and objective of these maritime exercises. The 
purpose of this study is to examine the development and execution of the 
Freedom of Navigation program in the Black Sea. 

* Reprinted from the Naval War College Review Spring 1993. 



244 Readings on International Law 

The Freedom of Navigation Program 



Following World War II, the United States began implementing an informal 
program to protect and promote the "rights and freedoms of navigation and 
overflight guaranteed to all nations under international law." Objectionable 
maritime claims worldwide included unrecognized assertions of historic waters, 
improperly drawn baselines for measuring maritime claims, excessive territorial 
sea demands imposing impermissible restrictions on the innocent passage of 
military and commercial vessels, and other maritime claims excessive or improper 
under international law. In 1979, the Carter administration formally established 
the Freedom of Navigation program, and it soon became an integral part of 
American foreign policy. 

According to a 1979 communication from the Commander in Chief, U.S. 
Atlantic Command (CincLant) to naval units of that fleet, the Freedom of 
Navigation program was initiated because the U.S. government was concerned 
that many countries were beginning to assert jurisdictional boundaries that far 
exceeded traditional claims. The FON program was a way of letting these 
countries know that the United States would not tolerate claims having an 
adverse impact on maritime freedom of movement. The memorandum noted 
that "in the future, there will be planned exercises, transits and overflights by 
Naval and Air Forces for the purposes of asserting U.S. rights in the face of 
excessive claims." U.S. maritime policy would now: 




_ •». -.l^Samsun 



jerry lamothe 



Aceves 245 

• Protest all territorial sea claims in excess of twelve nautical miles and some 
greater than three, especially those overlapping an international navigation strait. 

• Protest all claims inhibiting navigation over waters that the United States 
viewed as a high seas corridor. 

• Protest all claims requiring advance notification for warships or restricting 
warship passage in any way. 

• Protest rules for "innocent passage" through the territorial sea which were 
substantially different from established provisions. 

• Protest assertions of jurisdiction over navigation and overflight beyond the 
territorial sea. 

The memorandum noted that if the United States did not protest what it 
believed to be illegal violations of its maritime rights, such inaction would imply 
ratification through acquiescence. It was subsequently noted by government 
officials that the FON program was specifically undertaken because diplomatic 
protests seemed ineffective. 

Thus, che Freedom of Navigation program was based on the legal position 
that a state may lose its rights under international law if it does not maintain a 
consistent maritime policy and protest what it perceives to be excessive claims. 
For example, if a state were to assert an excessive maritime claim and the United 
States avoided operating its ships and aircraft in the disputed area, the U.S. 
inaction would eventually contribute to the formation of new customary 
international law. However, such a development can be averted successfully by 
states who continuously object to it. 

The importance of maintaining a consistent policy was exemplified in 1982 
during an evaluation of proposed FON operations that were to be conducted 
from 1 October 1982 through 31 March 1983. In reviewing the proposed 
navigation and overflight program that was to be conducted in the Black Sea, 
Rear Admiral S.H. Packer, acting Deputy Chief of Naval Operations, argued 
that in order to maintain a uniform policy the United States should not challenge 
Bulgaria's excessive maritime claims unless it challenged the Soviet Union's as 
well. According to Admiral Packer, the Navy firmly adhered to the view that 
a challenge to Bulgaria's warship notification regime without challenging the 
identical Soviet claim in the Black Sea would be counterproductive and under- 
mine the appearance of U.S. resolve in the face of illegal initiatives. Such passivity 
would suggest reluctance to challenge the illegal maritime arrogations of power- 
ful adversaries, which in turn could well be construed as acquiescence to such 
claims. Admiral Packer noted that "although the Navy is committed to the 
proposition that eventually all excessive maritime claims must be challenged, no 
challenge can be either considered or executed in isolation from all pertinent 
political, military, geographic or juridical factors." In this case, those factors 
substantially outweighed the benefit that might be gained by challenging 
Bulgaria's claims alone. 



246 Readings on International Law 

Perhaps the most authoritative statement on the Freedom of Navigation 
program was presented by President Ronald Reagan in 1983. In his evaluation 
of U.S. maritime policy, President Reagan stated that the "United States will 
exercise and assert its navigation and overflight rights and freedoms on a 
worldwide basis in a manner that is consistent with the balance of interests 
reflected in the [1982 Law of the Sea Convention]. The United States will not, 
however, acquiesce in unilateral acts of other States designed to restrict the rights 
and freedoms of the international community in navigation and overflight and 
other related high seas uses.** 

The influence of international law on U.S. maritime policy was reiterated in 
1986 by the Assistant Secretary of State for Oceans and International Environ- 
mental and Scientific Affairs, John Negroponte, when he noted that the "exercise 
of rights — the freedom to navigate on the world's oceans — is not meant to be a 
provocative act. Rather, in the framework of customary international law, it is 
a legitimate, peaceful assertion of a legal position and nothing more. If the United 
States and other maritime states do not assert international rights in the face of 
claims by others that do not conform with the present status of the law, they will 
be said to acquiesce in those claims to their disadvantage. What is particularly 
difficult in this situation is to understand that the more aggressive and un- 
reasonable and provocative and threatening a claim may be, the more important 
it is to exercise one's rights in the face of the claim. The world community can't 
allow itself to be coerced — coerced into lethargy in the protection of the freedom 
of the seas." 

Freedom of Navigation Challenges 

The Freedom of Navigation program combines both diplomatic and opera- 
tional challenges to objectionable maritime claims. Under the program, the 
United States undertakes diplomatic action at several levels to preserve its rights 
under international law. It conducts bilateral consultations with many coastal 
States, stressing the need for all states to adhere to the rules and practices reflected 
in the 1982 United Nations Convention on the Law of the Sea (1982 LOS 
Convention). When appropriate, the State Department files a formal diplomatic 
protest addressing specific claims. Since 1948 the United States has diplomati- 
cally protested over 150 excessive claims, including more than 110 since the 
FON program began in 1979. 

In conjunction with diplomatic action, the Defense Department conducts 
operational challenges to objectionable claims. In the State Department view, 
operational assertions tangibly manifest U.S. determination not to acquiesce in 
excessive maritime demands by other countries. Operational challenges are 
conducted under strict regulation; peacetime rules of engagement are applicable 
throughout FON operations. In particularly sensitive cases, approval must be 



Aceves 247 

received from the Joint Chiefs of Staff or the President. Since 1979, the U.S. 
military has operationally protested the objectionable claims of over thirty-five 
States at the rate of approximately thirty or forty per year. 

The Black Sea Challenges 

Though the FON program was implemented worldwide, confrontations with 
the Soviet Union produced some of the most contentious incidents. According 
to the Pentagon, the United States has conducted maritime operations in the 
Black Sea since 1960, and by the 1980s American warships were passing through 
the Turkish straits from the Mediterranean into the Black Sea two or three times 
a year to "show the flag" and to exercise the right of innocent passage in the 
territorial seas of littoral states. 

The presence of U.S. warships in the Black Sea served three purposes. First, 
the United States sent warships through the Turkish straits to uphold its rights 
under the 1936 Montreux Convention. According to a U.S. government 
official, "The Dardanelles and the Bosporus form an international waterway. 
Passage is covered by the 1936 Montreux Convention. If you don't periodically 
reaffirm your rights you find that they're hard to revive." Second, the U.S. 
conducted Freedom of Navigation exercises in the Black Sea to affirm the right 
of innocent passage in Soviet territorial waters. Third, naval operations in the 
Black Sea demonstrated that waters outside territorial seas are international 
waters, where every State enjoys the high-seas freedoms of navigation and 
overflight. 

The Soviet Union considered U.S. operations in the Black Sea unacceptable. 
Thus, the Soviets routinely dispatched their naval vessels and aircraft to monitor 
U.S. warships there. Specifically, the Soviets criticized U.S. operations on three 
grounds. First, the Soviets claimed that the American maneuvers violated the 
Montreux Convention because the caliber of the U.S. antisubmarine rocket 
launcher (Asroc) exceeded the 203mm Convention limit. The United States 
responded that Asroc was not a gun and was therefore not covered by the 
Convention. 

Second, the Soviets criticized the maneuvers as both provocative and 

dangerous and asserted that there was no justification for the maintenance by the 

United States of a presence in the Black Sea. In 1968, Izvestiya commentator 

A. Sharifov noted that "the provocative visit by American ships to the Black Sea 

is aimed at troubling the clear waters of the good neighbor relations of the Black 

1 ft 
Sea countries." In the 1980s, the Soviets criticized Freedom of Navigation 

exercises in the Black Sea as an attempt to undermine improving Soviet- 
American relations. 

Third, the Soviet Union protested U.S. operations in Soviet territorial waters 
because they violated Soviet maritime regulation. Since World War II the Soviet 



248 Readings on International Law 

position on innocent passage in their territorial sea had been to require prior 
notification and authorization for warship transit. For example, the Soviet Union 
entered a reservation to the 1958 Convention on the Territorial Sea and the 
Contiguous Zone that declared that the coastal State "has the right to establish 
a procedure of authorization for the passage of foreign warships through its 
territorial waters." Subsequently the Soviets established authorization proce- 
dures in their 1960 State border regulations. 

Although the Soviets appeared to relax their position on innocent passage 
during the UNCLOS III negotiations, they eventually promulgated internal 
legislation that significandy restricted the right of innocent passage. On 28 April 
1983 the Soviet Council of Ministers enacted the "Rules of Navigation and 
Sojourn of Foreign Warships in the Territorial Waters and Internal Waters and 
Ports of the U.S.S.R." The Rules limited the transit of foreign warships 
through the territorial waters of the Soviet Union. Specifically, the Soviet 
regulations stated that innocent passage through Soviet territorial waters was to 
be permitted only along routes ordinarily used for international navigation. The 
Rules set out "traffic separation schemes'* through which warships could travel 
in the Baltic Sea, the Sea of Okhotsk, and the Sea of Japan. There were no 
routes available for innocent passage in the Black Sea. 

Freedom of Navigation operations in the Black Sea resulted in numerous 
confrontations between U.S. and Soviet forces. In fact, the Soviet response to 
the U.S. presence in the Black Sea gradually developed from one of diplomatic 
protest to armed response. 

• On 9 December 1968, the destroyers USS Dyess and Turner of the Sixth 
Fleet sailed into the Black Sea, where they cruised for three days off the coasts 
of Turkey and the Soviet Union, closely shadowed by Soviet vessels. The Soviets 
charged that the maneuvers were a "provocative sortie"; Pravda asked, "Why do 
the Americans need to take such a stroll in the Black Sea?" 

• In August 1979, as the destroyers USS Caron and Farragut were conducting 
"show the flag" maneuvers in the Black Sea, Soviet warplanes staged more than 
thirty mock missile attacks against them. According to Pentagon officials, the 
Soviets sent out a variety of bombers, including the modern, supersonic TU-22M 
Backfire, to join reconnaissance planes in tracking the U.S. destroyers after they 
sailed into the Black Sea on 1 August. 

• On 18 February 1984, the destroyer USS David R. Ray was conducting 
FON exercises in the Black Sea near Novorossiysk when Soviet aircraft fired 
cannon rounds into the ship's wake and a Soviet helicopter taking photographs 
of the destroyer swooped within thirty feet of its deck. U.S. officials considered 
the Soviet action a violation of the spirit of the Incidents at Sea Agreement. 

Given the escalation taking place in the Black Sea, it was evident that the 
United States and the Soviet Union were rapidly approaching a confrontation. 



Aceves 249 

On 10 March 1986, the guided missile cruiser USS Yorktown and the destroyer 
Caron entered the Black Sea. At 11:11 A.M. on 13 March the Yorktown and 
the destroyer Caron entered Soviet territorial waters near the southern Crimean 
Peninsula and passed within six miles of the Soviet coast, where they were soon 
confronted by a Soviet warship. The commander of the Soviet frigate Ladnyi 
notified the U.S. warships that they had violated the territorial waters of the 
Soviet Union and requested that they depart immediately. The U.S. vessels 
acknowledged receipt of the warning but did not change course. The Soviet 
command placed its Black Sea air and naval forces on combat readiness and 
dispatched border guard vessels and naval aircraft to intercept the U.S. warships. 
The Yorktown and Caron stayed in Soviet territorial waters for approximately two 
hours and departed at 1:12 P.M. 

The Soviet Union was quick to condemn the U.S. maneuvers. The U.S. 
charge d'affaires, Richard Combs, was summoned to the Soviet foreign ministry 
in Moscow to receive the Soviet protest. The Soviets stated that the American 
violation of its territorial waters "was of a demonstrative, defiant nature and 
pursued clearly provocative aims." According to the protest note, it was not the 
first time that U.S. warships had deliberately failed to comply with Soviet laws 
regarding its territorial waters and that such violations can have serious conse- 
quences, the responsibility for which will be wholly on the U.S." In fact, the 
commander in chief of the Soviet navy, Fleet Admiral V.N. Chernavin, suggested 
that the U.S. ships might have been attacked had they remained longer in Soviet 
waters. Similarly, Georgi Arbatov, Director of the Institute of the U.S.A. and 
Canada, stated that the U.S. operations represented an attempted to test the Soviet 
Union and warned that Soviet forces would shoot the next time it happened. 

Specifically, the Soviet Union based its protest to the American maneuvers 
on the notion that the right of innocent passage for warships was not absolute in 
Soviet territorial waters. According to Admiral Chernavin: "The innocent 
passage of foreign warships through the territorial waters of the USSR is 
permitted only in specially authorized coastal areas which have been announced 
by the Soviet Government [and] there are no such areas in the Black Sea off the 
coast of the Soviet Union."" Thus, opposition to the U.S. exercises was 
apparently not based on any activities that the Yorktown or Caron may have 
undertaken during their transit through Soviet territorial waters. Rather, it was 
the act of crossing into Soviet waters and the subsequent presence in the area 
that constituted the alleged violation. 

However, in its protest note the Soviet Union also charged that the U.S. 
actions were "a clear violation of Soviet borders for the purpose of conducting 
espionage."* Similarly, the Soviet news agency Novosti accused the U.S. of 
conducting a dangerous espionage operation against Soviet southern defenses 
using two naval ships and a military satellite. 34 Novosti asserted that the Caron 
and Yorktown entered Soviet territorial waters while an American reconnaissance 



250 Readings on International Law 



35 



satellite made three passes over the Black Sea. It added that the approach of the 
U.S. vessels was intended to activate Soviet defenses and disclose their location 
and nature to the orbiting satellite. 

According to The New York Times, the two American warships were equipped 
with electronic sensors and entered Soviet territorial waters not only to assert the 
right of innocent passage but also to test Soviet defenses and to gather intel- 
ligence. The charges were based on the fact that both the Caron and the 
Yorktown had intelligence-gathering capacity. The Navy has denied that the 
passage was in any way inconsistent with international law. 

Pentagon officials admitted that the Caron had been loaded with additional 
equipment during the Black Sea operations. In fact, it was apparently standard 
procedure on such exercises to use electronic gear in order to determine whether 
new radars had been deployed on shore and to verify the state of readiness of 
Soviet forces. According to one analyst, "What you want is to provoke a 
response.*' Soviet naval units operated with shore-based aircraft and submarines; 
collecting data on how these forces coordinated and deployed was a major 
American intelligence goal. 

If while in the Soviet territorial sea the Yorktown and Caron were engaged in 
collection of information or any other activity not having a direct bearing on 
passage, it would be in violation of the 1982 LOS Convention provisions relating 
to innocent passage. According to Article 19(1), passage is innocent so long as it 
is not prejudicial to the peace, good order, or security of the coastal State. In 
addition, Article 19(2)(c) states that "any act aimed at collecting information to 
the prejudice of the defence or security of the coastal State" is not considered 
innocent passage. Thus, a transit of the territorial sea undertaken expressly to test 
coastal State defenses, even passively, would fall under the 19(2)(c) prohibition. 
Such activity would also fall under the Article 19(2)(1) prohibition on "any other 
activity not having a direct bearing on passage." 

In response to the Soviet charges, the United States asserted that the entry of 
the warships into Soviet waters "was simply an exercise of the right of innocent 
passage." White House spokesman Edward Djerejian added that the maneuvers 
were routine and not intended to be provocative or defiant. The Department 
of State released a statement emphasizing that the purpose of the Freedom of 
Navigation program was to uphold the exercise and preservation of navigation 
and overflight rights and freedoms around the world. The statement noted that 
in fulfillment of the objectives of that program, U.S. ships and aircraft exercised 
rights and freedoms under international law off the coasts of many countries. 

It is likely that the Yorktown and Caron were conducting intelligence gathering 
operations during their high seas transit off the coast of the Soviet Union; this 
would be permissible under international law. While the warships may have 
ceased active intelligence gathering operations during their passage through the 



Aceves 251 

Soviet territorial sea, they probably continued to monitor Soviet activity through 
their defensive collection systems (e.g., radar and sonar). 

In February 1988 a more serious incident occurred between U.S. and Soviet 
naval forces in the Black Sea. On 10 February, two ships, again the Caron and 
Yorktoum, entered the Black Sea. The U.S. warships were soon approached by 
three Soviet vessels, a Krivak-class frigate, a Mirka-class frigate, and a smaller 
intelligence gathering ship. ' The Soviet vessels shadowed the U.S. warships 
throughout their Black Sea transit. 

On 12 February, the Caron and Yorktown entered Soviet territorial waters near 
Sevastopol and headed eastward, skirting the Crimean Coast. Within minutes, 
the U.S. warships were intercepted by additional Soviet vessels. The Caron was 
contacted by the Mirka-class frigate SKR-6. Three minutes later, the Yorktown 
was approached by the Krivak-class frigate Bezzavetnyi. 

The Caron transmitted the following to CincUsNavEur at 11:20 A.M. 
Greenwich ("Z") time, or 1:20 P.M. local, from 44° 10 min. north latitude and 
34° 39 min. east longitude: "While conducting FON . . . track south of Crimean 
peninsula at 0746Z [9:46 A.M. local] 12 February 1988 Caron was informed on 
channel 16 VHF by Krivak-I FFG 811, 'Soviet ships have orders to prevent 
violation of territorial waters, extreme measure is to strike your ship with one of 
ours.' Caron* s reply was 'I am engaged in innocent passage consistent with 
international law.' Caron was located twelve nautical miles from the Soviet 
landmass. Caron continued on [planned track] and at 0802Z [10:02 A.M. local] 
at 44° 15.2 min. north latitude and 33° 35.4 min. east longitude, 10.5 nautical 
miles from the coast, Mirka FFL 824 contacted Caron* s port side aft at frame 466 
[about sixty feet from the stern]. There was no damage to Caron other than 
superficial scraping of paint and no personnel injuries. Caron continued transit 
and exited territorial waters at 0950Z [11:50 A.M.] 12 February 1988 without 
further incident. Closest point of approach to the Crimean peninsula was 7.5 
nautical miles at 0830Z [10:30 A.M.]. Data photos and video tape have been 
collected and will be forwarded in accordance with applicable instructions." 4 

The Yorktown sent the following message: "While conducting transit south of 
Crimean peninsula (closest point of approach 10.6 nautical miles from Soviet 
land mass) Yorktown was contacted at 0756Z [9:56] 12 February 1988 by Krivak 
081 1 via channel 16 . . . and told to leave Soviet territorial waters or 'our ship is 
going to strike on yours.' Krivak 0811 then came alongside Yorktown % port side 
at 0803Z [10:03] at a distance of less than fifty feet and subsequently shouldered 
Yorktown by turning into ship. Krivak 081 1 starboard anchor was torn away and 
Yorktown sustained minor hull damage. Two Harpoon [surface-to-surface missile] 
canisters (port launcher) sustained damage when Krivak bullnose [forwardmost 
extremity of the bow] passed down port quarter. Krivak 0811 then cleared to 
port and took station 300 yards off Yorktown port beam. At 0805Z [10:05] Krivak 
0811 again contacted Yorktown via channel 16 and stated 'We will strike you as 



252 Readings on International Law 

before if you do not clear our waters.' This transmission was not acknowledged. 
Krivak 0811 maintained station off port beam at 300 yards. Yorktoum continued 
transit and exited territorial waters at 0926Z [1 1 :26] without further incident." 

Interestingly, the Soviet version of the incident downplayed the severity of 
the collision. Interviews with Soviet officers aboard the Bezzavtnyi produced 
these comments: "There was not thought of using weapons. It was the same with 
Lieutenant Commander Petrov on board the SKR-6. . . . To be honest, no one 
in the in the command center [i.e., on the bridge] put on his lifejacket, although 
the order had been given. . . . Many members of the crew of Yorktoum were on 
the upper deck, smiling and waving, taking pictures of us with cameras and 
videocameras. And the commanding officer of Yorktoum^ for example, appeared 
on the bridge in parade uniform. In a word, the Americans behaved as if they 
were participating in a show for entertainment." 

Following the incident, Undersecretary of State for Political Affairs Michael 
Armacost called in Soviet ambassador Yuri Dubinin to lodge the U.S. protest, 
which declared that the incident occurred as the Caron and Yorktoum were 
lawfully exercising the right of innocent passage. In testimony before the Senate 
Armed Services Committee, Secretary of Defense Frank C. Carlucci stated that 
the U.S. operations in the Black Sea involved a routine trial of the Freedom of 
Navigation program. "This particular test was not a test of their territorial waters, 
but of the right of innocent passage. We did such a test 2 years ago. Under 
international law, they had no right to attempt to impede our ships or to use 
force. Force is only warranted when there is a threat, and these ships were clearly 
engaged in innocent passage. Our view is that unless you exercise the right of 
freedom of navigation, inevitably you lose it. You can always find reasons for 
not doing it at some particular point in time, but if we start backing off we will 
eventually lose some of the rights that are absolutely essential for our freedom of 
navigation. 

The U.S. protest added that the United States was especially troubled by the 
fact that the incident was preceded by threats from the Soviet ships that they had 
been authorized to strike. These warnings made it clear the incident was 
deliberate. In fact, according to the Central Intelligence Agency, "The reaction 
of Soviet naval forces to two U.S. warships conducting Freedom-of-Navigation 
operations in the Black Sea off the Crimea yesterday probably was decided at the 
highest political level. . . . This challenge to U.S. operations almost certainly was 
approved by the Soviet political leadership which may have reasoned that minor 
collisions would be viewed as a firm but measured response. The Soviets claim, 
and have sought to enforce, a 1 2-nautical-mile limit for their territorial 
waters . . . The incident yesterday probably was designed to demonstrate a 
resolve to defend Soviet borders after such failures as the Cessna landing [by West 
German Mathias Rust] in Red Square last month. The naval leadership has 
come under criticism for its inability to prevent U.S. ships from operating in 



Aceves 253 

Soviet-claimed territorial waters in the Black Sea and in the Far East.' Similarly, 
Secretary Carlucci noted that the Soviet vessels had received authorization to 
engage the United States and that the decision to bump the U.S. warships was a 
political one. 

Soviet reaction to the incident was equally vociferous. The U.S. ambassador 
to the Soviet Union, Jack Matlock, was summoned to the foreign ministry to 
receive the formal Soviet protest. The protest note stated that "the American 
ships did not react to signals given by a Soviet border guard ship in advance to 
warn them of their approaching the state border of the U.S.S.R. and did not 
make suggested changes in their course."" It added that "a considerable distance 
inside Soviet territorial waters, the American naval ships executed dangerous 
maneuvering which led to a collision with Soviet naval ships. . . . Responsibility 
for the provocation which has been made, which led to the collision of the 
warships of the two nations, lies entirely and fully on the American side." 

The bases for the Soviet protest were similar to those of their protest following 
the 1986 incident. First, the Soviets argued that the purpose of the FON 
operations was to undermine the "nascent process of improvements in Soviet- 
American relations and heightening international relation." In response, 
Secretary of State George Shultz noted that "the Freedom of Navigation Program 
protects basic freedoms of the seas and skies and is completely consistent with 
international law. If we are to retain our rights of navigation, we must periodically 
exercise those rights in areas subject to illegal and excessive territorial claims. 
These activities are fully coordinated within the Executive Branch and have the 
support of the President and his Cabinet. Given our sensitive political relationship 
with the Soviet Union, proposed operations in Soviet waters are subjected to 
particularly rigorous scrutiny, prior to their approval, and while they are 
underway. But we cannot exempt the Soviets from this program — to do so would 
accede to their illegal maritime claims. This we do not intend to do." 

Second, the Soviets accused the United States of conducting intelligence 
operations in Soviet territorial waters. Although vehemently denied by the U.S. 
government, unidentified Pentagon officials stated that one purpose of the 
operations was to collect intelligence information on Soviet defenses. Interest- 
ingly, the following testimony before the Senate Armed Services Committee by 
Admiral William J. Crowe, then Chairman of the Joint Chiefs of Staff, and by 
Secretary Carlucci suggests that U.S. policy permitted some form of intelligence 
collection within the territorial sea: 

Chairman Nunn: Secretary Carlucci, following Senator [Dan] Quayle's question on that 
right of innocent passage, I assume that we acknowledge that right of ships in our territorial 
waters, is that correct? 

Secretary Carlucci: That is correct, 

Nunn: So we are not asking the Soviet Union to do anything we do not do ourselves? 

Carlucci: Absolutely not. As you are well aware, they have intelligence collection ships 



254 Readings on International Law 

sitting just three miles outside our shores, just outside what we claim is territorial waters. In 
fairness to the Soviets, they claim twelve miles. 

Nunn: What about the intelligence function? Can innocent passage include intelligence 
gathering under international law? 

Carlucci: We had better ask the lawyers. All ships have intelligence capability on them, 
so I do not see how you could avoid it. 

Nunn: In other words, if the Soviets pull intelligence ships up right next. . . . 

Carlucci: The purpose of innocent passage has to be transit. 

Nunn: It is not loitering? 

Carlucci: I would not think you could go back and forth. 

Nunn: Innocent passage is a means of getting from one place to the other? 

Admiral Crowe: That is exactly right. If you gather intelligence in the process, all right. 
But you cannot do anything unusual in order to gather intelligence while you are engaged 
in innocent passage. In fact, you cannot do anything to operate out of the ordinary pattern 
except to go. That is it. 

Nunn: So the point is it is reciprocal. We accord nations the same right that we demand, 
is that right? 

Crowe: Yes, sir, we do. 

Perhaps the most basic point of contention between the United States and the 
Soviet Union involved a fundamental disagreement over the right of the coastal 

CO 

state to limit innocent passage in the territorial sea. According to the State 
Department, the 1982 LOS Convention limits the right of the coastal state to 
impose restrictions on innocent passage. The English text of Article 22, paragraph 
1 , reads as follows: "The coastal State may, where necessary having regard to the safety 
of navigation, require foreign ships exercising the right of innocent passage through 
its territorial sea to use such sea lanes and traffic separation schemes as it may 
designate or prescribe for the regulation of the passage of ships." (Emphasis 
added.) In other words, a state can impose sea lane restrictions that limit innocent 
passage only if they are based on navigational safety considerations. The State 
Department noted that the Soviet maritime regulations violated the provisions 
of the 1982 LOS Convention by completely prohibiting the exercise of innocent 
passage in the Black Sea. 

However, the Soviets indicated that the Russian text of the law of the Sea 
Convention did not limit the coastal state to such restrictions. A subsequent 
analysis conducted by the Department of States discovered that the Russian-lan- 
guage text of Article 22, paragraph 1 , allows the coastal state to regulate the right 
of innocent passage whenever necessary. The relevant Russian text, translated 
into English, reads as follows: "The coastal state, in the event of necessity and with 
regard to the safety of navigation, may require foreign ships exercising the right of 
innocent passage through its territorial sea to use such sea lanes and traffic 
separation schemes. ..." (Emphasis added.) 

Thus, a critical issue concerned the scope of Article 22, paragraph 1, of the 
Convention: specifically, does the 1982 LOS Convention allow coastal states to 
limit innocent passage only for navigational safety considerations, or may sea lane 



Aceves 255 

restrictions be imposed when necessary for other purposes, e.g., to protect 
national security? 

Following the February 1988 incident, the Soviet Union expressed a strong 
desire to reach some form of accommodation with the United States on the issue 
of innocent passage in Soviet territorial waters. Similarly, Secretary Carlucci 
suggested that the U.S. and the Soviet Union should try to set better guidelines 
for reducing dangerous incidents such as the confrontations in the Black Sea. 
According to Secretary Carlucci, "You could lay out some principles such as: 
you don't use violence, you don't ram ships, you don't fly too close to airplanes. 
We need to get one another's perspective . . . [and] find a way to deal with 
dangerous military activities and hear about their [Soviet] doctrine." As a result, 
the United States and Soviet Union began a series of bilateral consultations in an 
attempt to resolve the issues raised by the bumping incident. The negotiations 
involved two distinct matters: the avoidance of dangerous military activities, and 
the right of innocent passage. 

On 11 July 1988, Marshal Sergei F. Akhromeyev, then chief of the Soviet 
General Staff, and Admiral Crowe issued a joint statement in Washington 
indicating their intent to pursue policies and actions that would assist their 
respective armed forces in avoiding dangerous military activities. They also 
announced plans to set up a joint military-to-military working group that would 
consider ways to avoid such unintended confrontations. It was stated that there 
was "no intention on their part to replace or derogate from existing agreements 
such as the 1972 Agreement on the Prevention of Incidents On and Over the 
High Seas or the 1947 Huebner-Malinin Agreement on military liaison mis- 

,.64 

sions. 

On 1 June 1989, the Agreement on the Prevention of Dangerous Military 
Activities was signed in Moscow by Admiral Crowe and Colonel General 
Mikhail Moiseyev, newly appointed chief of the General Staff. According to the 
Agreement, the parties were "guided by generally recognized principles and rules 
of international law." The document noted that both sides were convinced of 
the need to prevent dangerous military activities and thereby reduce the pos- 
sibility of incidents arising between their armed forces. 

The Agreement, which took effect on 1 January 1990, identified the following 
activities of personnel and equipment of armed forces, when operating in 
proximity to the personnel and equipment of the armed forces of the other party 
during peacetime, as dangerous: 

• Entry by personnel and equipment of the armed forces of one party into 
the national territory of the other owing to circumstances brought about by force 
majeure or as a result of unintentional actions by such personnel. 

• Using a laser in such a manner that its radiation could cause harm to 
personnel or damage to equipment of the armed forces of the other party. 



256 Readings on International Law 

• Hampering the activities of the personnel and equipment of the armed forces 
of the other party in a "Special Caution Area" in a manner which could cause 
harm to personnel or damage to equipment. 

• Interfering with command and control networks in a manner that could 
cause harm to personnel or damage to equipment of the armed forces of the 
other party. 

In addition, the Agreement stated that the parties "shall exercise great caution 
and prudence while operating near the national territory of the other Party." It 
allowed the parties to designate the above-mentioned "Special Caution Areas" 
inside which military personnel must establish and maintain communications and 
undertake measures to prevent dangerous military activities. Finally, the Agree- 
ment provided for the establishment of a Joint Military Commission to ensure 
compliance with the Agreement and consider ways to ensure a higher level of 
safety. 

Reaction to the Agreement was positive on both sides. Admiral Crowe was 
pleased that it had been negotiated by military professionals. Similarly, Major 
General George Butler, chief of the American negotiating team, noted that the 
Agreement represented "a new level of trust" between the two nations' military 
and civilian leaders. The Soviet press agency Tass stated that the signing was "an 
unprecedented event which would have been inconceivable two years ago." 

However, the application of the Agreement to U.S. Freedom of Navigation 
exercises was unclear despite its apparent relevance to FON operations. Article 
VIII of the Agreement stated, "This Agreement shall not affect the rights and 
obligations of the Parties under other international agreements and arrangements 
in force between the Parties, and the rights of individual or collective self-defense 
and of navigation and overflight, in accordance with international law. Consistent 
with the foregoing, the Parties shall implement the provisions of this Agreement, 
taking into account the sovereign interests of both Parties." Moreover, sup- 
plemental Agreed Statements added, "As indicated in Article VIII . . . this 
Agreement does not affect rights of navigation under international law, including 
the right of warships to exercise innocent passage." Since the two sides had 
differing views on the right of navigation and overflight through the territorial 
sea, Article VIII and the accompanying Agreed Statements would appear to have 
precluded application of the Agreement to such issues. 

The issue of innocent passage was resolved in a separate series of negotiations 
that took place between U.S. State and Defense Department law-of-the-sea 
representatives and Soviet officials, including Yuri Rybakov, head of the treaty 
and legal division of the Ministry of Foreign Affairs. Throughout these discus- 
sions, the Soviet representatives emphasized that the Soviet Union desired a 
diplomatic solution to the issue of innocent passage. In fact, "Rybakov intimated 
that the ongoing bilateral LOS channel would be the best forum through which 
to achieve such a solution because of its demonstrated problem solving record 



Aceves 257 

and its non-polemic atmosphere.'* The State Department shared Rybakov's view 
"that the LOS bilateral consultative mechanism [had] proven itself useful in 
problem solving over the past two years and is the best forum in which to 
continue our mutual search for a satisfactory solution." The negotiations were 
concluded in August 1989 when the U.S. and Soviet negotiators prepared a joint 
statement setting out a mutually acceptable interpretation of the rules of inter- 
national law applying to innocent passage throughout the territorial sea. 

On 23 September 1989 at Jackson Hole, Wyoming, Secretary of State James 
Baker and Soviet Foreign Minister Eduard Shevardnadze signed the Uniform 
Interpretation of Rules of International Law Governing Innocent Passage. 
According to the Joint Statement that accompanied the Uniform Interpretation, 
both governments recognized that the provisions of the 1982 LOS Convention 
relating to traditional uses of the oceans "generally constitute international law 
and practice and balance fairly the interests of all States." Thus, the United 
States and the Soviet Union agreed to take the necessary steps to put their internal 
laws and regulations in conformance with their agreement. The Uniform 
Interpretation provided: 

1. The relevant rules of international law governing innocent passage of ships in 
the territorial sea are stated in the 1982 United Nations Convention on the Law 
of the Sea (Convention of 1982), particularly in Part II, Section 3. 

2. All ships, including warships, regardless of cargo, armament or means of 
propulsion, enjoy the right of innocent passage through the territorial sea in 
accordance with international law, for which neither prior notification not 
authorization is required. 

3. Article 19 of the Convention of 1982 sets out in paragraph 2 an exhaustive 
list of activities that would render passage not innocent. A ship passing through 
the territorial sea that does not engage in any of these activities is in innocent 
passage. 

4. A coastal State which questions whether the particular passage of a ship 
through its territorial sea is innocent shall inform the ship of the reason why it 
questions the innocence of the passage, and provide the ship an opportunity to 
clarify its intentions or correct its conduct in a reasonably short period of time. 

5. Ships exercising the right of innocent passage shall comply with all laws and 
regulations of the coastal State adopted in conformity with relevant rules of 
international law as reflected in Articles 21, 22, 23 and 25 of the Convention of 
1982. These include the laws and regulations requiring ships exercising the right 
of innocent passage through its territorial sea to use such sea lanes and traffic 
separation schemes as it may prescribe where needed to protect safety of navigation. 
In areas where no such sea lanes or traffic separation schemes have been prescribed, 
ships nevertheless enjoy the right of innocent passage. 

6. Such laws and regulation of the coastal State may not have the practical effect 
of denying or impairing the exercise of the right of innocent passage as set forth 
in Article 24 of the Convention of 1982. 

7. If a warship engages in conduct which violates such laws or regulations or 
renders its passage not innocent and does not take corrective action upon request, 



258 Readings on International Law 

the coastal State may require it to leave the territorial sea, as set forth in Article 30 
of the Convention of 1982. In such cases the warship shall do so immediately. 

8. Without prejudice to the exercise or rights of coastal and flag States, all 
differences which may arise regarding a particular case of passage of ships through 
the territorial sea shall be settled through diplomatic channels or other agreed 

71 

means. 

On 28 September 1989, the State Department notified all U.S. diplomatic 
posts that since Soviet border regulations had been brought into conformity with 
the 1982 LOS Convention, the U.S. government had assured the Soviet Union 
that the United States had no reason or intention to exercise its right of innocent 

77 

passage under the Freedom of Navigation program in the Soviet territorial sea. 
The State Department noted, however, that the warships of both countries 
retained the right to conduct innocent passage incidental to normal navigation 
in the territorial sea. Moreover, it added that the United States would continue 
to conduct routine operations in the Black Sea and that the U.S. retained its right 
to exercise innocent passage in any territorial sea in the world. Nevertheless, after 
the signing of the Uniform Interpretation, there were no further incursions by 
U.S. warships into Soviet territorial waters in the Black Sea. 

This review of the Freedom of Navigation program reveals that the Black 
Sea operations were successful on several levels. First, FON operations 
pushed the Soviet Union into formal negotiations on the right of innocent 
passage. According to the State Department, "the Soviets entered into a serious 
effort to reconcile our divergent views of the right of innocent passage only after 
the February 1988 Black Sea FON operation." As a result of these negotiations, 
the Soviet Union amended its internal regulations and rescinded its strict 
limitations on innocent passage. 

The long-term implications of the Black Sea FON operations are even more 
significant. They affirmed the provisions of the 1982 LOS Convention relating 
to the traditional uses of the oceans, and as a result maximized the freedom of 
maritime movement. 

At perhaps a more fundamental level, this review of U.S. Freedom of 
Navigation operations in the Black Sea has shown a compelling relationship 
between law and strategy. On the one hand, the influence of international law 
on U.S. foreign policy has been significant. The Freedom of Navigation program 
was established as a direct result of the legal constraints potentially imposed by 
international law. A State failing to realize the importance of the law of the sea 
can find its sea power severely restricted or rendered useless. Commerce, for 
example, is affected when trade routes are swallowed up by expanding territorial 
claims. Transit along littorals may be restricted by wary nations asserting their 
territorial sovereignty; key choke points can be closed to both commercial and 
military vessels; other straits may be so highly regulated that they no longer serve 



Aceves 259 

the economic or military interests of the maritime State. Sea lines of communica- 
tion could be interdicted, therefore, not by a hostile fleet but by the extension 
of coastal state sovereignty. 

At the same time, the development of international law has been shaped and 
influenced by the diverse strategic concerns of the United States. Throughout 
its history, the United States has been aware of its heavy dependence on free and 
unimpeded passage through the world's oceans. America's geographic position, 
the location of its major allies, its dependence on international trade, and the 
importance of the oceans as sources of food, energy, and minerals provide a 
compelling rationale for this traditional reliance on the freedom of the seas. 
This dynamic, whereby strategy dictates the formation and development of 
international law, is clearly evident in the Freedom of Navigation program — 
wherein the United States has closely guarded both navigation and overflight 
rights throughout the world's oceans under the rubric of the freedom of the seas. 



William Aceves was a Ph.D. candidate in the Department of Government at Harvard University 
when this article was first published. 

Notes 

1. Message from USS Yorktoum to Commander in Chief United States Naval Forces Europe on 12 
February 1988, declassified 16 January 1990. (Abbreviations expanded.) 

The right of innocent passage was most recendy codified in the Third United Nations Conference on the 
Law of the Sea (UNCLOS III), United Nations Convention on the Law of the Sea, A/CONF 62/122 (1982). 

Article 17 of the Convention provides that ships of all States enjoy the right of innocent passage through the 
territorial sea. Article 18 defines passage as navigation through the territorial sea for the purpose of either 
traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal 
waters, or proceeding to or from internal waters or a call at such roadstead or port facility. It adds that such 
passage must be continuous and expeditious. Passage is considered innocent so long as it is not prejudicial to 
the peace, good order, or security of the coastal State. 

In order to distinguish between the final Convention and the U.N. negotiations which led to it, in this paper 
the actual instrument will be referred to as the "1982 LOS Convention" and the conference which produced 
it as "UNCLOS III." 

2. Message from USS Caron to Commander in Chief United States Naval Forces Europe on 12 February 
1988, declassified on 16January 1990. (Slighdy edited, abbreviations expanded.) 

The U.S.-USSR Agreement on the Prevention of Incidents On and Over the High Seas was signed in 1972. 
This navy-to-navy agreement (popularly referred to as the Incidents at Sea or IncSea agreement) attempted to 
minimize the potential for harassing actions and navigational "one upmanship" between U.S. and Soviet units 
in the close proximity at sea. Although the agreement applied to warships and military aircraft operating on 
and over the high seas, it was understood to embrace such units operating in all international waters and 
international airspace. The IncSea agreement was amended in a 1973 protocol to extend certain provisions of 
the agreement to nonmilitary ships. See "Agreement Between the Government of the United States of America 
and the Government of the Union of Soviet Socialist Republics on the Prevention of Incidents On and Over 
the High Seas," T.I.A.S. 7379, 23 U.S.T. 1168; Department of the Navy, Office of the Chief of Naval 
Operations 2-10, 2-11 (1987). 

3. The United States also conducted Freedom of Navigation operations in the Black Sea in the waters 
off Rumania and Bulgaria. 

4. Department of State, Bureau of Public Affairs, U.S. Freedom of Navigation Program (Washington: 
December 1988), p. 1. 

5. Dorsey, U.S. To Challenge Sea Limits, The Ledger Star (Norfolk, Va.), 7 August 1979, p. 1; U.S. Will 
Challenge Coastal Sea Claims That Exceed Three Miles, The New York Times, 10 August 1979, p. Al. 

6. Id. U.S. Will Challenge, p. Al. 



260 Readings on International Law 

7. Memorandum from Rear Admiral S.H. Packer to the Director, Joint Staff dated 28 October 1982, 
declassified 17 January 1991. 

8. President Ronald Reagan, United States Oceans Policy, 10 March 1983. 

9. Negroponte, Who Will Protect Freedom of the Seas? 855 Current Policy 3 (1986). 

10. Id. 

1 1 . Roach, "Excessive Maritime Claims," remarks prepared for delivery at a panel meeting of the American 
Society of International Law, 20 March 1990, p. 7. 

12. U.S. Freedom of Navigation Program, p. 2. 

13. Department of the Navy message from the Office of Information to Commander in Chief United 
States Naval Forces Europe, London, 19 March 1986. 

The United States also conducted Freedom of Navigation operations against the Soviet Union in Avacha 
Bay on the Kamchatka Peninsula, the Sea of Okhotsk, and the Sea of Japan. 

This analysis should be compared with the outcome of what is known as the Vilkitsky Straits incident. In 
August 1967, two U.S. Coast Guard icebreakers were crossing the Arctic basin north of the Soviet Union, 
collecting oceanographic and other scientific data. Unable to find access through the ice, the vessels planned 
to transit through the twenty-two-mile- wide Vilkitsky Straits, above the Taimyr Peninsula at about 105 east 
longitude. On 27 August 1967, the Soviet Ministry of Foreign Affairs notified the American Embassy in 
Moscow that the passage "would be a violation of Soviet frontiers" and that the straits constituted Soviet 
territorial waters. Though the State Department issued a strong protest, claiming that the passage could not be 
prohibited, the icebreakers were ordered not to pass through the straits. See Ackley, The Soviet Navy's Role in 
Foreign Policy, Naval War College Review 53-55 (May 1972); and Pharand, Soviet Union Warns United States 
Against Use of Northeast Passage, 62 Am. J. Int'l L. 927 (1968). 

14. The Montreux Convention was signed in 1936 and concerns the regulation of transit through the 
Turkish straits of the Bosporus and Dardanelles; under it, exclusive Turkish sovereignty over the straits was 
guaranteed. Complete freedom of transit and navigation was granted to merchant vessels. However, transit by 
warships was significandy restricted. See 173 LNTS 213; RONZITTI, THE LAW OF NAVAL WARFARE 
435-482 (1988). 

15. Welles, While Keeping the Flag Flying, The New York Times, 15 December 1968, p. 3E. 

16. Ackley, supra n. 13 at 55-56. 

17. According to Igor Belyayev ofPravda, "The waters of the Black Sea are joined with the Mediterranean 
through the Bosporus and Dardanelles. The striving of the Soviet Union to protect its vital State interests in 
the region is completely natural and lawful." See Belyayev, " International Review," Pravda, 7 December 1968; 
Ackley, supra n. 13 at 55. 

18. Sharifov, Provocateurs at Sea, Izvestiya (8 December 1968). 

19. Buder, Innocent Passage and the 1982 Convention: The Influence of Soviet Law and Policy, 81 Am. J. Int'l 
L. 333 (1987). 

20. See "Rules for Navigation and Sojourn of Foreign Warships in the Territorial and Internal Waters 
and Ports of the U.S.S.R.," 28 I.L.M., 1715 (1985), and Neubauer, The Right of Innocent Passage for Warships 
in the Territorial Sea: A Response to the Soviet Union, Naval War College Review 52 (Spring 1988). 

21. 24 I.L.M. 1715-1717 (1985). 

22. Welles, supra n. 15 at 3E. 

23. U.S. Ships Report Soviet Mock Attack, Los Angeles Times, 11 August 1979, p. 5. 

24. Atkinson, High Seas Diplomacy Continuing, The Washington Post, 27 July 1984, p. 1. 

25. The Caron and Yorktown had earlier entered the Black Sea on 9 December 1985. 

The Yorktown is a Ticonderoga-chss cruiser equipped with Aegis, a computer-controlled, radar-directed 
defense system that transmits simultaneously in all directions and can track multiple targets, while selecting, 
aiming, and firing the weapons best suited to destroy each target. It can also engage an incoming missile while 
searching for and tracking additional missiles. The Caron is a Spruance-c\iss destroyer. 

Both the Yorktown and the Caron are capable of carrying nuclear weapons. The technology used by the Caron 
and Yorktown was considered so advanced that much of it was not even shared with U.S. allies. In fact, according 
to a Pentagon analyst, "Any effort to seize the Caron or the Yorktown and you'd see every U.S. or NATO 
fighter-bomber in the area hitting those Soviet ships. Nor would the navy captains go quiedy. They'd broadside 
until they sank." See RICHELSON, AMERICAN AND THE SOVIET TARGET 165 (1987); Sale, Analysts Believe 
Soviet Ramming Orders Came From Moscow, UPI, 29 February 1988; and Arkin, Spying in the Black Sea, Bulletin 
of the Atomic Scientists 6 (May 1988). 

26. According to Admiral Chermavin, "Taking into account the openly provocative nature of the actions 
of the U.S. ships, the command issued an order that the combat readiness of the strike force of the fleet be 
enhanced. Ships and planes were prompdy prepared for performing a combat mission." See Jack Redden, 
Soviets Go on Alert in Presence of U.S. Ships, UPI, 22 March 1986; Buder, Innocent Passage and the 1982 Convention: 
The Influence of Soviet Law and Policy, 81 Am. J. Int'l L. 344 (1987). 

27. To the Shores of Tripoli, Time, 31 March 1986, p. 26. 



Aceves 261 

28. Department of the Navy message from the Office of Information to the Commander in Chief United 
States Naval Forces Europe, 19 March 1986, declassified 9 August 1989. 

29. Central Intelligence Agency telegram to the Department of State, 13 February 1988, declassified 28 
November 1989. 

30. Id. 

31. Buder, supra n. 19 at 344. 

32. Id. at 344-345. 

33. Supra n. 27 at 26. 

34. Ralph Boulton, Soviet Agency Accuses U.S. of Espionage over Soviet Coast, Reuters, 2 April 1986. 

35. UPI, 22 March 1986. It would appear that space-based surveillance support for Freedom of Navigation 
operations does exist. In 1988 the United States Space Command at Peterson Air Force Base notified the 
various commanders in chief that a separate message "encouraged CinCs to work together regarding Freedom 
of Navigation (FON) scheduling and operations. Request [that] CinCs planning for the operations [inform] 
UsCincSpace/J3 on any requests which may potentially involve space based surveillance support." Message 
from Headquarters U.S. SpaceCom, Peterson Air Force Base, Colo., to UsCincLant, 7 June 1988, declassified 
22 August 1989. 

36. The Crimean Peninsula accommodates sensitive Soviet southern radar defenses as well as submarine 
bases. 

The electronic reconnaissance program has been in existence since 1962. The purpose of the program is to 
establish the location of radar systems and determine their physical characteristics. With such information, 
electronic countermeasures can be designed to jam or negate those systems. Generally, the first priority of 
electronic reconnaissance with respect to radars is to establish the location of the radars. Next, attention is 
turned to identifying the function of the radar (early warning, aircraft control, gun-laying, antiaircraft, or active 
countermeasures). See RJCHELSON, AMERICAN ESPIONAGE AND THE SOVIET TARGET 109 (1987). 

Interestingly, the Soviets compared the use of satellites during the Black Sea operations with the 1983 
downing of the Korean Airlines passenger jet. Moscow asserted that the Korean airliner had been on a 
pre-planned spying mission flown in conjunction with the electronic reconnaissance (or "Ferret") satellite. 
Novosri asserted that "this most recent use of the Ferret satellite in an outrageous provocation against the 
sovereignty and security of the Soviet Union will perhaps serve as a reminder of provocation staged not so 
long ago. . . . The outcome of some of these provocations was relatively harmless, while others spelled a tragic 
end for those who staged them." See Boulton, supra n. 34. 

37. Halloran, 2 U.S. Ships Enter Soviet Waters off Crimea to Gather Intelligence, The New York Times, 19 
March 1986, p. Al. 

38. Since 1980 the Caron has been on at least twenty-four missions where her special equipment for 
collecting intelligence has been needed. For example, she has been involved in intelligence gathering off the 
coast of Nicaragua in 1982 and Lebanon in 1983-1984, and she played a part in the 1986 maneuvers in the 
Gulf of Sidra prior to the American raids on Tripoli. The Caron was the first U.S. Navy ship to arrive on station 
for Operation Urgent Fury against Grenada in 1983. 

Against Soviet troops, the Caron has been engaged in intelligence gathering near several major Soviet naval 
bases, including Kaliningrad, Severomorsk, Sevastopol, and Polyarmyy. The Caron also provided surveillance 
of the Soviet Kiev aircraft carrier battle group in Operation Aggressive Knight in March 1980 and Operation 
Eagle Eye in July 1981 . See Department of the Navy message from the Office of Information to the Commander 
in Chief United States Naval Forces Europe, 19 March 1986, declassified 9 August 1989; Cushman, 2 Soviet 
Warships Reportedly Bump U.S. Navy Vessels, The New York Times, 13 February 1988, p. Al; and Arkin, supra 
n. 25 at 6. 

39. Soviet Ships Shadowed U.S. Vessels' Transit, The Washington Post, 20 March 1986, p. A33. 

40. Department of the Navy message from the Office of Information to the Commander in Chief United 
States Naval Forces Europe, 12 March 1986, declassified 9 August 1989. 

41. Halloran, supra, n. 37 at Al. 

42. Department of State Bulletin, May 1986, p. 79. 

43. Department of State telegram from CincUsNavEur to Commander in Chief European Command 
UsCincEur), 12 February 1988, declassified 23 February 1991. 

44. Sevastopol is the headquarters of the Soviet Black Sea Fleet. 

45. Department of State Telegram from CincUsNavEur to UsCincEur dated 12 February 1988, declassified 
22 February 1991. (Slighdy edited, abbreviations expanded.) 

46. Message from the USS Yorktoum to Commander in Chief United States Naval Forces Europe, 12 
February 1988, declassified 16 January 1990. (Edited as for Caron message.) 

47. Office of the Legal Adviser, Department of State, declassified 10 August 1989. 

48. Similar protests were conducted by the Navy and the Defense Department. The naval protest was 
lodged pursuant to the Incidents at Sea (IncSea) Agreement. At the Defense Department, Secretary Carlucci 
stated that one of the issues he would like to discuss with Soviet Defense Minister Dmitri Yazov during their 



262 Readings on International Law 

upcoming meeting in Switzerland the following month would be Soviet military practices that jeopardized 
American lives and property. See Department of State telegram, 13 February 1988, declassified 10 August 1989. 

49. U.S. Congress, Senate, Committee on Armed Services, Department of Defense Authorization for 
Appropriations for Fiscal Year 1989, Hearings 97-98 (1988). 

50. Department of State memorandum to Michael Armacost, 12 February 1988, declassified 10 August 
1989. 

51. Central Intelligence Agency telegram to the Department of State, 13 February 1988, declassified 28 
November 1989. 

52. Senate Armed Services Committee Hearing, p. 95 

53. Office of the Legal Adviser, Department of State, declassified 10 August 1989. 

54. Id. 

55. Letter from Secretary of State George Shultz to Senator Alan Cranston, 21 March 1988, declassified 
5 June 1990. 

56. Cushman, supra n. 38 at Al. 

57. Senate Armed Services Committee Hearings, pp. 97-98. 

58. At a Moscow news conference, Admiral Nikolai Markov, citing Soviet law, stated that the Soviet 
Union did not recognize the right of innocent passage through its territorial waters in the Black Sea. 

59. Interestingly, of the six official languages into which the Law of the Sea Convention was translated, 
only the Arabic text was identical to the English; discrepancies with the English version existed in the Chinese, 
French, Russian, and Spanish texts. For example, the French text of Article 22(1) reads, in a literal translation: 
"The coastal State may, when the security of negotiation so dictates. . . ." The Spanish text reads, "The Coastal State 
may, when necessary taking into account the safety of negotiation. ..." Department of State memorandum, 12 
September 1988, declassified 10 August 1989. (Emphasis added.) 

60. Id. 

61. Department of State memorandum, 31 August 1988, declassified 10 August 1989. 

62. Action Memorandum to the Secretary of State, 5 September 1989, declassified 5 June 1990. 

63. 28 I.L.M. 877 (1989). 

64. The Huebner-Malinin agreement governed the operations of the U.S. military liaison mission in East 
Germany and of the Soviet mission in West Germany. See I.L.M. 877 (1989). 

65. Id. at 879. 

66. Clines, U.S.-Soviet Accord Cuts Risk of War, The New York Times, 13 June 1989, p. A12. 

67. 28 I.L.M. 885 (1989). 

68. Id. at 895. 

69. Telegram from Secretary of State to American Embassy, Moscow, 1 August 1988, declassified 5 June 
1990. 

70. 28 I.L.M. 14445 (1989). The Joint Statement acknowledged the U.S. position that the 1982 LOS 
Convention constitutes international law and practice only as to traditional uses of the oceans. By limiting its 
recognition on the applicability of the Convention, the United States apparently maintained its objections to 
those provisions in the Convention relating to unconventional uses of the ocean, namely, the deep-sea mining 
provisions. 

71. 28 I.L.M. 1444, 1445-1447 (1989). The flag state is the country whose flag the vessel is flying. 

72. Specifically, Secretary Baker delivered a letter to Foreign Minister Shevardnadze which noted that 
"without prejudice to its rights to exercise innocent passage, the United States of America has no intentions 
to conduct innocent passage with its warships in the territorial sea of the Union of the Soviet- Socialist Republics 
in the Black Sea." Department of State Circ Tel. no. 311861, 28 September 1989, Carroll, Peace Comes to the 
Black Sea, Arms Control Today, 22 (July/ August 1990). 

73. International Law Division of the Soviet Ministry of Foreign Affairs, 1 1 July 1990. 

74. Action Memorandum to the Secretary of State dated 5 September 1989, declassified 5 June 1990. 

75. Truver, The Law of the Sea and the Military Use of the Oceans in 2010, 45 Louisiana Law Review 1227 
(1985) 1227. 



Chapter 1 9 

The "New" Law of the Sea 

and m 

The Law of Armed Conflict at Sea. 1 

Horace B. Robertson, Jr. 



THE UNITED NATIONS CONVENTION on the Law of the Sea, 2 adopted 
at the close of the Third United Nations Conference on the Law of the 
Sea (UNCLOS III) in 1982, created what many conferees and others regard as a 
new constitution for the oceans. Although it has not yet entered into force, and 
no major maritime State has ratified it, it has nevertheless had a profound impact 
on the law of the sea. President Ronald Reagan, while announcing that the 
United States would neither sign nor become a party to the Convention because 
its provisions on the mining of the deep seabed were fatally flawed, at the same 
time stated that, "the convention also contains provisions with respect to 
traditional uses of the oceans which generally confirm existing maritime law and 
practice and fairly balance the interests of all states." The American Law Institute, 
in its authoritative Third Restatement of the Foreign Relations Law of the 
United States, went further, stating: 

[B]y express or tacit agreement, accompanied by consistent practice, the United 
States, and states generally, have accepted the substantive provisions of the 
Convention, other than those addressing deep sea-bed mining, as customary law 
binding upon them apart from the Convention. 

The features of the Convention that have had the most impact on the practice 
of States are the new or expanded jurisdictional zones recognized in the 
Convention. These include the twelve-nautical-mile territorial sea, the twenty- 
four-nautical-mile contiguous zone, the 200-nautical-mile exclusive economic 
zone (EEZ), the greatly expanded continental shelf, and archipelagic waters, all 
of which have in one way or another reduced the areas in which high seas 
freedoms may be exercised. A new regime for international straits — transit 
passage — is also an important development. 

* This article was previously published as the Naval War College Newport Paper #3, October 
1992. 



264 Readings on International Law 

Although, as will be developed below, the differentiation of an area of the ocean 
that is subject to the territorial sovereignty of the coastal state — the territorial 
sea — had its origin in the practices of States in time of war 1 — specifically in their 
assertions as neutrals that acts of hostilities should not take place close to their 
shores — the jurisdictional areas that are a part of the current law of the sea have 
been developed primarily for the protection of peacetime interests and are 
regarded as basically a peacetime regime. Nevertheless, by defining the areas that 
are subject to coastal State sovereignty or the exercise of other forms of 
jurisdiction, this regime may have significant effect on the exercise of both 
belligerent and neutral rights during time of armed conflict. As stated by 
Professor Bernard H. Oxman: 

To the extent one continues to divide public international law into the two 
classic categories — the laws of war and the laws of peace — the Convention on the 
Law of the Sea would doubtlessly fall within the latter category. This is so in the 
sense that the rules of armed conflict and neutrality are not addressed by the 
Convention. 

At the same time, the Convention does contain rules for dividing the oceans 
into different jurisdictional zones. Some of the rules of warfare and neutrality vary 
with the status of geographic areas. The integration of the new regimes of the law 
of the sea with the rules of naval and air warfare is accordingly a subject that merits 
attention. The classic dichotomy in the law of the sea between internal waters and 
the territorial sea on the one hand, and the high seas on the other, has yielded to 
new subtleties and modalities, particularly in the regimes of straits, archipelagic 
waters, the exclusive economic zone and the continental shelf. 

As suggested by Professor Oxman, the most significant effect of the new 
jurisdictional zones will be upon the rules of neutrality, where the relationship 
between neutrals and belligerents and the applicability of rules depends on the 
particular jurisdictional area in which hostile activities take place. For that reason, 
this paper concentrates principally on the effect that the establishment or 
recognition of new jurisdictional zones may have on the law of neutrality . 

Although some publicists have questioned the continued viability of the 
concepts of belligerency and neutrality in light of the adoption of the United 
Nations Charter and the limitations it has placed on the use of armed force, as 
experience in the two recent Persian Gulf conflicts demonstrate, there is no other 
body of law that deals adequately with the relationships between States that are 
party to the conflict and those that choose not to take part in it. As Professor 
Christopher Greenwood has stated: 

[T]he law of neutrality still provides the only body of rules sufficiendy precise and 
detailed to regulate such matters as rights to intercept shipping. The casualties 
amongst "neutral" shipping in the Gulf [Iraq-Iran] conflict illustrate the need for 
a detailed body of rules on this subject and the inadequacy of attempts to deal with 
such matters simply by reference to the broad principles of self-defence. 



Robertson 265 

Accordingly, I shall use the terms "belligerent" and "neutral" to describe 
respectively those States that are involved in an armed conflict and those that are 
not taking part in the armed conflict. 



A Brief History of the Origins and 
Development of "Zones" in the Oceans 11 

The history of the law of the sea is a history of the tensions between coastal 
States seeking to exercise jurisdiction over or special interests in ocean waters 
lapping their shores and other States seeking to exercise freedoms of navigation, 
fishing, and other common interests in the oceans. 

Roman law recognized the doctrine of freedom of the seas, although it remains 
unclear whether the freedoms embraced in the doctrine applied to all or just to 
Roman citizens. With the breakup of the Holy Roman Empire and the 
creation of numerous city-states and principalities in Europe, those bounding the 
seas laid claim to vast expanses of the oceans, asserting exclusive rights of 
navigation and fishing within them and exacting tribute from the ships of other 
States that wished to sail "their" waters. The trend toward national claims over 
vast expanses of the oceans reached its apogee near the end of the fifteenth century 
when Pope Alexander VI, in 1493, divided the then-known oceans of the world 
between Spain and Portugal. A year later, in the Treaty of Tordesillas, Spain 
and Portugal confirmed this arrangement, each claiming for itself a monopoly of 
navigation and commerce within its respective sphere. 

Even England, that later bastion of the freedom of the seas, laid claims to the 
seas that washed the British Isles during the reigns of the Plantagenet and Stuart 
monarchs, although the intervening Tudor Elizabeth actively opposed "the 
exclusive maritime sovereignty arrogated by Venice, Portugal, or Spain." 

The shrinking of these expansive claims began with the great juridical debates 
about mare liberum and mare clausum that occurred in the early seventeenth 
century. The most influential voice in these debates was that of Grotius, who, 

•i Q 

in 1609, published Mare Liberum, in which he argued for the right of the Dutch 
to trade in the East Indies, where the Portuguese claimed a monopoly on the 
right of trade and navigation flowing from the Papal Bull and Treaty of 
Tordesillas. Grotius* arguments for the freedom of the seas and against the 
acquisition of property rights in the oceans were repeated and refined in his more 
extensive work, The haw of War and Peace} 9 published in 1625. Grotius' books 
went unchallenged by Portuguese and Spanish publicists, against whose claims 
they were specifically directed, but they struck a nerve in England, where 
Welwood and later Selden undertook the defense of the Stuart monarchs' 
pretensions to dominion over the "British seas" (the extent of which were never 
clearly defined), particularly with respect to the right to exclude Dutch fishermen 



266 Readings on International Law 

and the practice of requiring the striking of the flag to British men-of-war in 
those seas. 

England continued to assert its dominion over "British seas" during the Stuart 
monarchies (1603-1714) as well as during the Interregnum period of the 
Commonwealth and Protectorate (1649-1659). The Scandinavian States made 
similar claims to the waters of the Baltic and the western seas between the 
Scandinavian States and Iceland and Greenland. The main opponent of these 
extravagant claims was the United Provinces (the Dutch), whose international 
commerce and fishing fleets predominated during that period. Their resistance 
to British demands for the striking of topsails and flag in the presence of British 
men-of-war and their insistence on the right of their fishing fleet to fish in "British 
seas" precipitated three naval wars with England during the seventeenth century. 
At various times during these tumultuous times of shirting alliances the Dutch 
were joined by France and other continental powers. 

During these same times, however, the embryo of the concept of a territorial 
sea began to take shape. Grotius himself had addressed only the vast expanses 
of the oceans, and he recognized that some enclosed and narrow parts of the sea 
might be subjected to control from the adjacent land territory. Later, as stated by 
Fulton: 

During the seventeenth and eighteenth centuries another principle was gradually 
evolved, and was ultimately accepted as furnishing such a natural basis, so that it 
may now be regarded as an established part of international law. It was, that the 
maritime dominion of a state ended where its power of asserting continuous 
possession ended. The belt of sea along the coast which could be commanded and 
controlled by artillery on shore thus came to be regarded as the territorial sea 
belonging to the contiguous state. Beyond the range of guns on shore the sea was 

22 

common. 

The evolution of this principle owes its origins to the law of neutrality, where 
prize courts held that the prizes taken within the range of guns of a neutral fort 
were not "good prize" and were restored to their owners. It was reinforced by 
the practice of vessels rendering a salute when they came within the range of the 
artillery of a foreign fort. At the beginning of the eighteenth century, the Dutch 
jurist Cornelius van Bynkershoek "transferred in theory to all parts of a coast this 
decisive property of compulsion and dominion which, strictly speaking, only 
existed where forts or batteries were placed."' Bynkershoek's principle became 
known as the "cannon-shot rule," and since the range of cannon in 
Bynkershoek's era was about three nautical miles or one marine league, it became 
the equivalent of a three-nautical-mile territorial sea. Although Bynkershoek's 
theory did not receive immediate universal acceptance, it did, over the next 
century, become "incorporated into international law as the rule for fixing the 



Robertson 267 

boundary of the territorial waters." The causes for this gradual acceptance of a 
narrow band of territorial sea along the coast were, according to Fulton, twofold: 

One was the moral and material victory of the Dutch Republic in its long and 
persistent struggle against the exorbitant claims to maritime dominion, first of Spain 
and Portugal, and then of England and Denmark. The other was the great 
extension of commerce and navigation, in which England secured an ever-increas- 
ing share, so that in the [eighteenth] century we find her taking the part of Holland 
in opposition to the Danish claims to mare clausum. As maritime commerce 
extended and the security of the sea became established, it was felt more and more 
that claims to a hampering sovereignty and jurisdiction were incompatible with 
the general welfare of nations; and as the states interested in this commerce had 
the greatest power, the assertion of a wide dominion was gradually abandoned, 
surviving only in remote regions or in enclosed seas like the Baltic. 

For whatever reasons (and international-law scholars are not always in agree- 
ment as to what they are), by the end of the eighteenth century or early in the 
nineteenth century there was international acceptance of the idea that a nation's 
territorial sea was constituted by a uniform band along its coast, generally 
considered to be three nautical miles in width. By the end of the nineteenth 
century, of course, the range of cannon greatly exceeded three nautical miles, 
but despite the assertions of many publicists as to the illogic of preservation of a 
principle whose underlying theoretical basis was outdated, the principle 
remained essentially intact until the end of World War II. As stated by Jessup, 
"it remained because the nations found it a convenient compromise between 
conflicting interests." 

During this same period there developed also a legal regime of the territorial 
sea as well as a generally accepted rule as to its breadth. Despite varying theories 
that existed in the nineteenth century as to the nature of the territorial sea 
(sovereignty, jurisdiction, bundle of servitudes, etc.), by the early twentieth 
century, "scarcely any author took issue with the notion that the territorial sea 
is subject to sovereignty." This theory of sovereignty was confirmed by national 
practice and codifications of the 1920s as well as the preparatory work for the 
Hague Codification Conference of 1930, the International Law Commission's 
Draft Convention on the Law of the Sea, and the 1958 Geneva Convention 
on the Territorial Sea and Contiguous Zone. This principle is carried forward 
into the 1982 United Nations Convention on the Law of the Sea, which 
provides, inter alia , in article 2, that, "The sovereignty of a coastal State extends, 
beyond its land territory and internal waters ... to an adjacent belt of sea, 
described as the territorial sea." 

The sovereignty exercised by the coastal State over its territorial sea is the same 
as for its land areas and internal waters save for the right of ships of other 
nationalities to pass through the territorial sea in the exercise of the right of 
innocent passage in time of peace. Whether innocent passage includes the right 



268 Readings on International Law 

of warships to pass without prior notification or consent in time of peace, and 
the extent of permissible regulation or suspension of innocent passage in time of 
war, will be examined below. 

Concurrently with the development of the law of the territorial sea, a number 
of States also asserted certain rights more limited than full sovereignty in areas of 
the oceans beyond the narrow territorial sea. These took a number of forms and 
were extended to various distances from shore. Until all such acts were repealed 
in 1876, Great Britain had several laws (commonly referred to as "hovering acts") 
extending jurisdiction for enforcement of customs and excise laws to as much as 
four leagues (twelve nautical miles) from shore. As early as 1799 the United 
States had similar laws applicable to ships bound for United States ports, and in 
several cases the United States Supreme Court recognized the lawfulness of the 
enforcement of similar rights by other States beyond the limits of the territorial 
sea. Russia, France, Belgium, Italy, and Spain had similar laws extending to 
varying distances beyond three miles, as did the Scandinavian States. Several 
South American States adopted zones extending to twelve nautical miles for fiscal, 
revenue, and security purposes. Great Britain, having repealed the last of its 
"hovering acts" in 1876, strongly contested the right of other States to enforce 
such laws. It was joined by a number of other States in protesting the United 
States' pretensions to enforce its anti-liquor laws beyond the three-mile limit 
during the Prohibition Era. For these reasons, as well as the lack of uniformity 
both as to the content and outer limits for zones of special jurisdiction, it is difficult 
to conclude that the right to establish such zones had become a part of customary 
international law, at least until 1958 when the Convention on the Territorial Sea 
and Contiguous Zone recognized the contiguous zone for the purposes of 
preventing infringements of a coastal State's customs, fiscal, immigration, or 
sanitary regulations. 

Although a number of States at various times claimed the exclusive right to 
exploit the fishery resources off their shores beyond the territorial sea or at least 
to regulate their exploitation, such a right was not recognized in customary 
international law, even though as Fulton states, the three-mile limit "was 
selected, not on any grounds special to fisheries, but because it had been already 
recognised and put into force in connection with the rights of neutrals and 
belligerents in time of war. . . . [I]ts application to the right of fishing is accidental 
and arbitrary." 

At the conclusion of the Second World War, then, the only area of the ocean 
as to which it might be said that a coastal State had an undisputed right under 
international law to exercise jurisdiction and control was the territorial sea. Any 
rights beyond that outer boundary were subject to dispute unless contained in a 
treaty. At that point in time, therefore, the oceans were divided into three distinct 
areas — (1) internal waters, that is, waters inside the baseline, (2) the territorial sea 
of a breadth of three nautical miles over which the coastal State exercised full 



Robertson 269 

sovereignty except for the right of innocent passage by surface ships of other 
States, and (3) the high seas, which included all other waters of the oceans, in 
which all States were entitled to the freedoms of the high seas, which included, 
inter alia, the freedoms of navigation, fishing, scientific research, and laying of 
undersea cables and pipelines, and in time of war, the right of belligerents to 
conduct hostilities in accordance with the law of armed conflict at sea. 

The event which triggered the demise of this tripartite division of the oceans 
and resulted ultimately in today's multiple and overlapping zones of coastal States 
jurisdiction was President Harry Truman's Proclamation of the United States's 
claim to jurisdiction and control over the natural resources of the seabed and 
subsoil of the continental shelf of the United States. The outer boundary of the 
continental shelf was not defined in the Proclamation, but an accompanying 
White House Press release stated that generally the continental shelf extended to 
a point at which the depth of the water was 100 fathoms (600 feet). Although 
the Proclamation carefully delimited the extent of the claim and explicitly 
affirmed that "[t]he free and unimpeded navigation of the high seas above the 
continental shelf and rights under international law with respect to free swimming 
fish are in no way thus affected," this unilateral claim by the then-preeminent 
maritime power and one of the leading exponents of the freedom of the high 
seas opened the door for wider and more comprehensive unilateral claims by 
other States. The broadest of these were claims by several Central and South 
American States to extend their territorial seas to a breadth of 200 nautical miles. 
The relative uniformity and tranquility which had existed for about 150 years 
with respect to the law of the sea began to erode. The era of "creeping 
jurisdiction" had begun. 

Concurrently, the International Law Commission (ILC) began its studies 
leading ultimately to the development of a draft convention on the law of the 
sea. In its successive drafts of articles on the law of the sea prior to the convening 
of the First United Nations Conference on the Law of the Sea in 1958, the ILC 
was unable, however, to agree on a breadth of the territorial sea. In the articles 
produced at its Eighth Session, which served as the negotiating text for the 1958 
Conference, the article on the breadth of the territorial sea provided as follows: 

Article 3 

1. The Commission recognizes that international practice is not uniform as 
regards the delimitation of the territorial sea. 

2. The Commission considers that international law does not permit an exten- 
sion of the territorial sea beyond twelve miles. 

3. The Commission, without taking any decision as to the breadth of the 
territorial sea up to that limit, notes, on the one hand, that many States have fixed 
a breadth greater than three miles and, on the other hand, that many States do not 
recognize such a breadth when that of their own territorial sea is less. 



270. Readings on International Law 

4. The Commission considers that the breadth of the territorial sea should be 
fixed by an international conference. 

Although the first UN Conference on the Law of the Sea adopted four 
conventions on the law of the sea, one of which was the Convention on the 
Territorial Sea and Contiguous Zone, the conferees were unable to agree on 
an article establishing the breadth of the territorial sea, primarily because of the 
wide disagreement as to whether States could exercise exclusive control over 
fisheries in a zone beyond the limits of the territorial sea. Consequently, in its 
next session, the United Nations General Assembly voted almost unanimously 
to convene a Second Conference in 1960 exclusively "for the purpose of 
considering further questions of the breadth of the territorial sea and fishery 
limits." This Second Conference also failed to reach agreement on the breadth 
of the territorial sea, rejecting by a one- vote margin a compromise proposal 
sponsored jointly by the United States and Canada for a six-mile territorial sea 
with an additional six-mile exclusive fishery zone beyond that. 

The 1958 Conference did, however, succeed in reaching agreement on the 
contiguous zone which prior to the Conference had been disputed. Article 24 
of the Convention on the Territorial Sea and Contiguous Zone provides, inter 
alia, as follows: 

1 . In a zone of the high seas contiguous to its territorial sea, the coastal State 
may exercise the control necessary to: 

(a) Prevent infringement of its customs, fiscal, immigration or sanitary regula- 
tions within its territory or territorial sea; 

(b) Punish infringement of the above regulations committed within its 
territory or territorial sea. 

2. The contiguous zone may not extend beyond twelve miles from the baseline 
from which the breadth of the territorial sea is measured. 

The article adopted by the Conference was identical to that proposed by the 
ILC in its final draft except for the addition of the word "immigration" in 
paragraph 1(a). The ILC's Commentary on its draft article includes the following 
comments: 

(1) International law accords States the right to exercise preventive or protective 
control for certain purposes over a belt of the high seas contiguous to their 
territorial sea. It is, of course, understood that this power of control does not change the 
legal status of the waters over which it is exercised. These waters are and remain a part of 
the high seas and are not subject to the sovereignty of the coastal State, which can 
exercise over them only such rights as are conferred on it by the present draft or 
are derived from international treaties. 



Significantly, the Commission added the following comment: 



Robertson 271 

(4) The Commission did not recognize special security rights in the contiguous 
zone. It considered that the extreme vagueness of the term "security" would open 
the way for abuses and that the granting of such rights was not necessary. The 
enforcement of customs and sanitary regulations will be sufficient in most cases to 
safeguard the security of the State. In so far as measures of self-defence against an 
imminent and direct threat to the security of the State are concerned, the 
Commission refers to the general principles of international law and the Charter 
of the United Nations. 

The Convention on the Continental Shelf, which also was produced by the 
1958 Conference, gave treaty recognition to the continental shelf doctrine, 
providing that coastal States exercise "sovereign rights'* over the shelf for the 
purpose of "exploring it and exploiting its natural resources." The outer limit 
was defined as the point at which the water depth reached "200 meters or, beyond 
that limit, to where the depth of the superjacent waters admits of the exploitation 
of the natural resources of the said areas." 

Finally, the 1958 Convention on the Territorial Sea and Contiguous Zone 
incorporated into its provisions the principles enunciated by the Anglo- Norwegian 

CO 

Fisheries case for the adoption of straight baselines for portions of the coast 
which are marked by deep indentations or a fringe of coastal islands. Although 
these provisions result in only modest expansions of the national waters of a 
coastal State when the criteria for their use are appropriately applied, the practice 
of States since 1958 demonstrates a constant increase in their application to 
coastlines that do not fit the criteria, as well as expansive abuses of the criteria in 
situations where they may arguably be applicable. The result has been to 
incorporate large areas that were formerly high seas into the internal waters or 
territorial seas of coastal States. In some cases, the adoption of straight baselines 
results in the appropriation of much larger areas of the high seas than would an 
increase of the breadth of the territorial sea to twelve miles or more. 

Following the failure of the Second UN Conference on the Law of the Sea, 
the three-mile territorial sea began to lose adherents. Figure 1 summarizes the 
status of the claims of States to various breadths of the territorial sea from 1945 
to the present. By 1965, the three-mile claim had become a minority position 
with twelve miles being almost as common; by 1 974, shortly after the opening 
of the Third United Nations Conference on the Law of the Sea (UNCLOS III), 
twelve-mile adherents outnumbered three-mile adherents almost 2 to 1. The 
erosion of consensus as to what was the proper breadth of the territorial sea was 
one of the motivating factors for calling the Third United Nations Conference 
on the Law of the Sea. 



272 Readings on International Law 





The 


Expansion of Territorial Sea Claims 






Claims National 




1945 


1958 


1965 


1974 


1979 


1983 


1991 


3NM 




46 


45 


32 


28 


23 


25 


9 


4-11 NM 




12 


19 


24 


14 


7 


6 


5 


12 NM 




2 


9 


26 


54 


76 


78 


112 


OVER 12 NM 







2 


3 


20 


25 


30 


19 


Number of Coastal 


or 


60 


75 


85 


116 


131 


139 


145 


Island Nations 



















Figure 1 
Source: U.S. Department of the Navy 



The Status of Maritime Zones in the 
Current Law of the Sea 

The Third United Nations Conference on the Law of the Sea (UNCLOS III) 
met from 1973 to 1982 and produced the United Nations Convention on the 
Law of the Sea. Although the Convention has not yet entered into force, its 
provisions concerning traditional uses of the oceans are widely considered as 
reflective of customary international law. The provisions of the Convention 
which are most likely to have an impact on the law of armed conflict at sea are 
the following: 

• States may establish the breadth of their territorial sea up to a limit not 
exceeding twelve nautical miles (article 3). 

• States may draw straight baselines using the same criteria adopted in the 
1958 Territorial Sea Convention (article 7). 

• States may establish a contiguous zone beyond their territorial sea over 
which they exercise a limi ted jurisdiction for the prevention of infringement of 
their customs, fiscal, immigration or sanitary laws and regulations with an outer 
limit no more than twenty-four nautical miles from the baseline (article 33); 

• States may establish an exclusive economic zone (EEZ) beyond and adjacent 
to the territorial sea out to a limit of 200 nautical miles from the baseline; in the 
EEZ they have "sovereign rights" for the purpose of exploring and exploiting, 
conserving and managing the living and non-living natural resources of the 
seabed and subsoil and superjacent waters; in the EEZ they also exercise 
jurisdiction as provided in other provisions of the Convention with regard to 
establishment and use of artificial islands, installations and structures, marine 
scientific research, and the protection and preservation of the marine environ- 
ment (articles 55-57). Other States "enjoy" within the EEZ the freedoms of 



Robertson 273 

navigation and overflight, laying of submarine cables and pipelines, "and other 
internationally lawful uses of the sea related to these freedoms, such as those 
associated with the operation of ships, aircraft and submarine cables and pipelines, 
and compatible with the other provisions of this Convention" (article 58). Both 
the coastal State and other States are required, in exercising their rights in the 
EEZ, to have "due regard" for the rights of the other States and coastal States 
respectively (articles 56 and 58). 

• The outer boundary of the continental shelf is extended to 200 nautical 
miles from the baseline for all States, and for States with continental margins 
wider than 200 miles, to the edge of the margin according to a formula provided 
in the Convention, but in no case more than 350 nautical miles from the baseline 
or 100 nautical miles from the 2,500 meter isobath (article 76). 

• Straits embraced by the territorial sea of one or more States but used for 
international navigation between one part of the high seas or an EEZ and another 
part of the high seas or an EEZ are governed by the right of "transit passage," 
which permits "the freedom of navigation and overflight solely for the purpose 
of continuous and expeditious passage of the strait." Such passage may not be 
suspended (article 44), and passage may be made in the ship or aircraft's "normal 
mode" of operation (articles 37 and 38). Straits that have a ribbon of high seas 
or EEZ through them or are formed by an island and its mainland are not 
governed by the transit-passage regime if the high seas or EEZ route or the route 
seaward of the island is "of similar convenience with respect to navigational and 
hydrographical characteristics" (articles 36 and 37). The regime for these latter 
categories of straits, and for straits leading to the territorial sea of a foreign State, 
is innocent passage (non-suspendable in the cases of island-mainland straits and 
straits leading to the territorial sea of a foreign State) (article 45). In addition, the 
regimes for straits "regulated in whole or in part by long-standing international 
conventions in force specifically relating to such straits" are unaffected by the 
straits provisions of the Convention (article 35(c)). 

• States which are comprised solely of islands or parts of islands, which form 
an intrinsic geographical, economic and political entity, and which meet certain 
criteria as to land-to-water ratio and distance of separation may draw straight 
archipelagic baselines joining the outermost points of the outermost islands and 
drying reefs of the archipelago (Articles 46 and 47). The waters inside the 
baselines become "archipelagic waters" (article 49), and the territorial sea, 
contiguous zone, exclusive economic zone and continental shelf are measured 
outward from these archipelagic baselines (article 48). The archipelagic State 
exercises sovereignty over archipelagic waters, their seabed and subsoil, and the 
airspace above, regardless of their depth or distance from the coast (article 49). 
All States have the right of "archipelagic sea lanes passage" (which is equivalent 
to "transit passage" through straits) through archipelagic sea-lanes designated by 
the archipelagic State or in the absence of such designation through the routes 



274 Readings on International Law 

normally used for international navigation. For other areas of archipelagic waters, 
the ships of all States have the right of innocent passage. 

• The unrestricted freedoms of the high seas are exercised only from the outer 
limit of the exclusive economic zone rather than from the outer limit of the 
territorial sea (article 86). The area for the exercise of full high seas freedoms has 
thus been reduced by the subtraction of those areas that comprise the EEZ. If all 
coastal and island States claim an EEZ of 200 miles, this will reduce the area of 
the high seas by approximately one-third. As outlined above, however, the 
freedoms of navigation and overflight and the freedoms to lay cables and pipelines 
are preserved in the EEZ subject to the obligation of those exercising them to 
have "due regard" for the legitimate activities of the coastal State in its EEZ. 

• The Convention creates an international seabed "Area," which is defined 
as "the sea-bed and ocean floor and subsoil thereof, beyond the limits of national 
jurisdiction" (article 1). In effect, the "Area" comprises all of the seabed beyond 
the outer edge of the juridical continental shelf. Unlike the other zones discussed 
above, the "Area" is not subject to national jurisdiction or control but is regarded 
by the LOS Convention as the "common heritage of mankind" (article 135). 
Part XI of the Convention provides a regime and institutions for the purpose of 
exploration and exploitation of its mineral resources. Although Part XI has not 
been received into customary law as have the other Parts of the Convention, the 
"Area" will be briefly discussed in subsection V.G. below. 

The effect of the adoption of the 1982 Convention and absorption into 
customary international law of many of its provisions is to replace the three-fold 
division of the ocean (internal waters, a narrow territorial sea, and the high seas) 
with a multiplicity of broad and overlapping coastal areas under varying measures 
of jurisdiction and control by the contiguous States and a much reduced area of 
high seas. These divisions of the ocean are depicted in Figure 2. 

IV 

The Law of Armed Conflict at Sea and the 

Traditional Areas of the Oceans 

In order to understand how the emergence of new maritime areas may affect 
the law of armed conflict at sea, which has traditionally been conducted in oceans 
which juridically consisted of only three divisions — internal waters, territorial 
waters (territorial sea), and high seas — it is necessary to understand how this trifold 
division of the oceans affected the conduct of operations before the manifold and 
overlapping divisions of the present era were created. 

The essential overarching principles could be stated as follows: 

• First, the areas within which belligerents could conduct hostile operations 
were the high seas (which, it is to be remembered, consisted of all parts of the 



Robertson 275 






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276 Readings on International Law 

oceans beyond the territorial sea), the territorial sea and internal waters of 
belligerents, and the airspaces above these areas. 

• Second, the obverse of the first principle — as a general rule, hostile opera- 
tions could not be conducted in the internal waters or territorial sea of a neutral 
State, nor in the airspace above these divisions of the oceans. 

• Third, the neutral State is required to apply its neutrality regulations 
impartially to all belligerents engaged in the conflict. 

During the seventeenth and eighteenth centuries these general principles were 
fleshed out by the practice of States into a set of generally agreed upon and rather 
formal rules of conduct. Most of them were codified in the Second Hague Peace 
Conference as the 1907 Convention (XIII) Concerning the Rights and Duties 
of Neutral Powers in Naval War. Although Hague XIII has not received 
universal ratification, and a number of important States, including the United 
Kingdom, have never ratified it, most of its provisions are considered to be 
declaratory of customary law. In any event, it comprises the latest expression 
in treaty form of the respective rights and duties of neutrals and belligerents with 
respect to hostile activities within neutral "maritime territory" (that is, internal 
waters and the territorial sea) and may be used as a starting point for discussion 
of these issues. 

The provisions of Hague XIII concerning the respective rights and obligations 
of belligerents and neutrals in neutral maritime territory that are most likely to 
be affected by the replacement of the singular coastal zone of the territorial sea 
with the multiplicity of coastal zones resulting from the 1982 United Nations 
Convention are outlined below. Since ports are normally within internal waters, 
which are unaffected by the creation of additional zones beyond the territorial 
sea, I have not included the provisions of Hague XIII dealing solely with ports. 
On the other hand, roadsteads may be within either internal waters or the 
territorial sea and thus may be affected by the extension of the breadth of the 
territorial sea to twelve miles or the drawing of straight baselines. Accordingly, 
those provisions of Hague XIII dealing with "roadsteads" are included. The 
significant provisions of the Convention are as follows: 

Belligerents are required to respect the sovereign rights of neutral States and 
to abstain from acts that would constitute a violation of neutrality (article 1); 

Any act of hostility, including visit, search and capture by a warship in the 
territorial sea of a neutral power is a violation of neutrality (article 2); 

A neutral State must employ the "means at its disposal" to release a prize 
captured within its territorial sea (article 3); 

A prize court cannot be set up by a belligerent on neutral territory or on a 
vessel in neutral waters (article 4); 

Belligerents cannot use neutral ports or waters as a base of operations nor erect 
any apparatus to communicate with belligerent forces at sea (article 5); 



Robertson 277 

A neutral Government must employ the "means at its disposal" to prevent 
the fitting out or arming of vessels within its jurisdiction which it believes are 
intended for cruising or engaging in hostile operations and to prevent departure 
from its jurisdiction of such vessels (article 8); 

A neutral State must apply its rules and restrictions impartially to the bel- 
ligerents and may forbid the entry of vessels which have violated its rules or its 
neutrality (article 9); 

The "mere passage'* of belligerent warships or prizes through a neutral's 
territorial sea does not affect the neutral's neutrality (article 10); 

A neutral power may allow belligerent warships to employ its pilots (in its 
territorial waters ) (article 11); 

Unless the neutral's regulations provide otherwise, belligerent warships may 
remain in neutral ports, roadsteads or territorial waters no more than 24 hours 
(article 12); 

A neutral Power must notify a belligerent warship within its ports, roadsteads 
or territorial waters at the outbreak of hostilities to depart within 24 hours or 
such other period as required by the neutral's regulations (article 13); 

A belligerent warship may not prolong its stay in a neutral port except on 
account of damage or stress of weather and must depart as soon as the cause of 
delay is at an end (article 14); 

In neutral ports and roadsteads belligerent warships may carry out only repairs 
that are necessary to make them seaworthy. The local authorities may decide 
what repairs are necessary (article 17); 

Belligerent warships may not use neutral ports, roadsteads, or territorial waters 
for replenishing their supplies of war material or armament or for completing 
their crews (article 18); 

In neutral ports or roadsteads belligerent vessels may revictual only to the 
peacetime standard and receive fuel only in sufficient quantity to reach the nearest 
port of their own country or fill their bunkers, if the latter is the formula adopted 
in the neutral's regulations (article 19). They may not make a repeat visit for 
refueling at the port of a neutral in any of whose ports they have refueled for the 
previous three months (article 20); 

A neutral State must exercise such surveillance "as the means at its disposal 
allow" to prevent violation of its territorial waters (article 25); and 

The exercise of its rights under the Convention by a neutral cannot be 
considered an unfriendly act by a belligerent (article 26). 

To reemphasize a point already made, when the Convention uses the term 
"neutral waters" or waters "within its jurisdiction," or similar terms, it is referring 
either to the internal waters or the territorial waters (territorial sea) of the neutral 
State, since those were the only areas of the oceans recognized at that time as 
being within the jurisdiction or sovereignty of the coastal State. 



278 Readings on International Law 

V 

The Impact of Changes in Jurisdictional Zones 
upon the Law of Neutrality 

A. The Territorial Sea. As developed above, the concept of the territorial sea 
originated with the claims of neutral States to prevent belligerent hostile activities 
from occurring close to their shores, and the breadth of the territorial sea was 
originally tied to the actual area that a coastal State could control from its shore, 
i.e., the range of shore-based artillery or three nautical miles. Although the range 
of cannon soon exceeded this short distance, the rights and duties of neutral and 
belligerent States in the offshore areas bounding neutral coastal States remained 
tied to the three-mile breadth of the territorial sea. The series of compromises 
which resulted in the rules which eventually became embedded in the law of 
neutrality were thus based on the assumption that they would apply only in a 
very narrow coastal margin, measured from baselines which corresponded to the 
low- water line along the coast. 

The territorial sea now has a breadth of up to twelve miles, and while the 
normal baseline is still the low-water line along the coast, many coastal States 
claim the right to draw straight baselines in a manner that extends the outer 
boundary of the territorial sea many miles more than twelve miles from the actual 
coast. (Although the waters inside these exaggerated baselines become internal 
waters, the right of innocent passage is preserved through them where they 

/TO 

enclose areas which had previously not been considered as internal.) The 
combined effect of increasing the breadth of the territorial sea and allowing the 
use of straight baselines is thus to more than quadruple the area of the waters 
subject to coastal state sovereignty. This in turn raises the question of the 
continued applicability of all the rules summarized above to this broader band 
along a neutral's coast. 

Dr. Elmar Rauch, in his study of the issue, has no difficulty in concluding, 
without discussion, that the same rules apply in this expanded territorial sea that 
formerly applied in the narrow territorial sea. He states: 

As a matter of principle belligerents are bound to respect the sovereignty of 
neutral powers and to abstain, in neutral territory or neutral waters [by which he 
means the territorial sea and internal waters] from any act of warfare. Any act of 
hostility, including capture and the exercise of the right of search, committed by 
belligerent warships in the territorial waters of a neutral power, constitutes a 
violation of neutrality and is stricdy forbidden. 

Dr. Rauch may well be correct that such a conclusion can be drawn without 
further analysis. His conclusion is bolstered by the recently published United 
States Navy operational law manual, which explicitly accepts the idea that 



Robertson 279 

extension of the territorial sea to twelve nautical miles does not affect the 
application of the laws of neutrality, stating: 

[T]he 12-nautical mile territorial sea is not, in and of itself, incompatible with the 
law of neutrality. Belligerents continue to be obliged to refrain from acts of hostility 
in neutral waters and remain forbidden to use the territorial sea of a neutral nation 
as a place of sanctuary from their enemies or as a base of operations. 

71 70 

The Canadian and German draft manuals, both of which were prepared 
subsequent to the adoption of the twelve-mile territorial sea, state without 
comment that any hostile acts within neutral territorial seas are prohibited. 

It, of course, goes without citation that internal waters and the territorial sea 
are subject to the sovereignty of the coastal State, save only for the right of 
innocent passage in the territorial sea, and that the cardinal principle of the law 
of neutrality is that belligerents may not conduct hostilities in neutral territory, 
land or sea. Nevertheless, one may question whether rules which were developed 
to apply to a narrow band of water along a neutral's coast should be applied 
automatically to a band that may be more than four times as wide. As outlined 
above, neutral States have an obligation to use the means at their disposal to 
conduct surveillance of their waters to ensure that belligerents do not violate 
their neutrality and to take preventive or corrective action if they detect such 
violations. A broader territorial sea presents a greater burden of surveillance 
and enforcement for the neutral State as well as a greater temptation for 
belligerent naval forces, especially submarines, to use neutral waters as "safe 
corridors" for passage to or from legitimate areas of hostilities, for transit to or 
from home ports, or as safe havens for rendezvous with replenishment ships. If 
neutral States are unable or unwilling to carry out their obligations to prevent 
such activities, the opposing belligerent may legitimately take hostile action 
against the enemy forces that are unlawfully using the neutral's territorial sea. 
Such actions would tend to embroil the neutral in the armed conflict rather than 
isolate it from such actions, which, of course, is the purpose of the law of 
neutrality. The passage of the Altmark through the Norwegian territorial sea in 
World War II, as well as Great Britain's claim that German submarines were 
using the same sea as a thousand-mile-long "covered way" for passage of their 
submarines from home ports to operational areas in the open seas are examples 
of how even a narrow territorial sea may tempt belligerents to test the limits of 
tolerance of both neutrals and opposing belligerents to the use of neutral 
territorial seas for safe havens from attack. Increasing the breadth of the territorial 
sea more than four-fold would undoubtedly vastly increase such temptations. 

In time of peace, the ships of all States, including warships, have the right 
of innocent passage through the territorial seas of all States. In time of war, 
neutrals may, if they choose, allow "mere passage" of belligerent warships 

7R 

through their territorial seas without jeopardizing their neutral status. On the 



280 Readings on International Law 

other hand, neutrals may, if they choose, close their territorial seas except for 
those parts leading to an international strait to passage by belligerent warships. 9 
The temptations for belligerents to ignore a neutral State's closure of its territorial 
sea to passage, and the greater burdens of surveillance and enforcement on 
neutrals will undoubtedly result in increased tensions in a broader territorial sea. 
Professor Michael Reisman and William K. Lietzau have recently written that, 
"In addition to their important function in dissemination and transmission of 
international legal information, [military operational] manuals are an important 
mode for making international law as well as evidencing its existence.' In other 
words, the military manuals promulgated by States represent the practice of such 
States. The fact that the manuals of three major maritime States (United States, 
Canada, and Germany) have accepted the rules that were applicable to a 
three-mile territorial sea as equally applicable to a twelve-mile territorial sea 
strongly suggests that these principles are being incorporated into customary 
international law despite rather strong arguments that could be made that the 
factual and theoretical underpinnings for these rules have been undermined by 
a quadrupling of the breadth of the territorial sea. 

B. International Straits, Although, as developed above, a neutral coastal State 

was permitted to close its territorial sea to all belligerent hostile activity, including 

"mere passage by belligerent warships" under the pre- 1982 regime of the 

territorial sea, it was also generally accepted that this right did not apply to those 

fti 
parts of the territorial sea that comprised an international strait. This view was 

reinforced by the Corfu Channel case, which affirmed the right of British 

men-of-war to transit the strait between the Greek island of Corfu and the 

Albanian mainland which was a secondary passage between the Ionian and 

Adriatic Seas. In that case, the ICJ stated: 

It is, in the opinion of the Court, generally recognized and in accordance with 
international custom that States in time of peace have a right to send their warships 
through straits used for international navigation between two parts of the high seas 
without previous authorization of a coastal State, provided the passage is in- 

. 83 

nocent. 

This principle was codified in the 1958 Territorial Sea Convention as follows: 

There shall be no suspension of the innocent passage of foreign ships through straits 
which are used for international navigation between one part of the high seas and 
another part of the high seas or the territorial sea of a foreign State. 

As the number of adherents to territorial seas of twelve or more miles expanded 
in the 1960s, a number of maritime States became concerned that the regime of 
nonsuspendable innocent passage would provide insufficient protection for 



Robertson 281 

undisputed transit rights through international straits. Not only did this increased 
breadth of the territorial sea bring the waters of dozens of important straits within 
the territorial seas of bordering States, some of these States gave a more restrictive 
meaning to the "innocent" half of the innocent passage definition than had been 
visualized by either the International Court of Justice in the Corfu Channel case 
or the negotiators of the 1958 Territorial Sea Convention. Some States based 
their determinations of innocence on such factors as ownership of vessels, cargo 
carried, or destination of voyage. As a result, a number of States, following the 
initiative of the United States and the Soviet Union, began to discuss the 
possibility of a third U.N. conference on the law of the sea for the purpose of 
establishing general agreement on a twelve-mile territorial sea coupled with 
freedom of navigation for ships and aircraft through international straits. This 
movement coincided in time with Ambassador Pardo's initiative in the U.N. 
General Assembly for internationalization of the seabed beyond the limits of 
national jurisdiction. The confluence of these two movements eventually 
resulted in the convening of the Third United Nations Conference on the Law 
of the Sea (UNCLOS III), one of whose outcomes was the adoption of the 
doctrine of "transit passage" for ships and aircraft through straits used for 
international navigation between the high seas or an EEZ and another part of the 
high seas or EEZ. 

The provisions of the LOS Convention concerning transit passage are con- 
tained in Part III of the Convention, "Straits Used for International Navigation." 
As previously stated, transit passage applies to all straits used for international 
navigation between the high seas or an EEZ and another part of the high seas or 
EEZ, with three exceptions, as follows: 

1 . Straits in which passage is regulated in whole or in part by long-standing 
international conventions in force specifically relating to such straits; 

2. Straits through which there exists a high seas or EEZ route "of similar 
convenience with respect to navigational and hydrographical characteristics; 
and 

3. Straits formed by an island and mainland of the same State if there exists a 
high seas or EEZ route "of similar convenience with respect to the navigational 
and hydrographical characteristics" seaward of the island. 

For the first category, the governing regime is that which is provided in the 
"long-standing international convention" regulating passage through it. For the 
second, it is ordinary (i.e., suspendable) innocent passage as codified in the 

Oft 

territorial-sea Part of the Convention. For the third, the regime is nonsus- 
pedable innocent passage. 

By the terms of Part III of the LOS Convention, transit passage is more akin 
to the freedom of navigation exercised by ships and aircraft on the high seas than 
it is to innocent passage as codified in Part II of the Convention. Transit passage 
is defined as the exercise of the "freedom of navigation and overflight" by ships 



282 Readings on International Law 

and aircraft in their "normal modes of continuous and expeditious transit." 
During transit passage ships and aircraft must proceed through the strait without 
delay, refrain from the threat or use of force against bordering States and other 
acts contrary to the U.N. Charter, and comply with other relevant provisions of 
Part III. In addition, ships must comply with generally accepted rules for safety 
at sea and for the prevention, reduction, and control of pollution from ships, and 
aircraft must observe the ICAO rules for air navigation and monitor the 
appropriate radio frequencies. Although ships and aircraft in transit passage must 
comply with the laws and regulations of the States bordering straits, the content 
of such rules is confined to the safety of navigation, the prevention of fishing by 
fishing vessels, the prevention of customs, fiscal, immigration or sanitary offenses, 
and regulations which give effect to applicable international regulations for the 
control of pollution by oil and other noxious substances. States bordering straits 
may not impede transit passage nor adopt laws or regulations "that discriminate 
in form or in fact among foreign ships or in their application have the practical 
effect of denying, hampering or impairing the right of transit passage. . . ." Even 
if the transiting ship or aircraft violates the laws or regulations of the States 
bordering a strait, these States may not deny or terminate the transit-passage rights 
of the ship or aircraft but must find their remedy in a civil suit if the offender is 
a merchant ship or civil aircraft or under the principles of State responsibility if 
it is a ship or aircraft entitled to sovereign immunity. 

If under the pre-existing regime for straits it was generally accepted that neutral 
States could not deny passage to belligerent ships, including warships, in time of 
war, then a fortiori it should follow that this rule should be preserved under the 
more liberal transit-passage regime. But this new regime has two elements not 
included in the older one of nonsuspendable innocent passage: (1) it applies to 
aircraft; and (2) ships and aircraft may transit in their "normal mode." The second 
of these has been interpreted as including the submarines* right to submerged 
transit. Does it necessarily follow that submerged passage by submarines and 
overflight by belligerent aircraft should be allowed under the doctrine of transit 
passage in time of war? Adopting a teleological approach, Dr. Rauch answers 
yes. He states: 

One of the advantages of the new transit passage concept is that it keeps the littoral 
States bordering straits with great strategic value out of the vicious circle of 
escalation in times of tension and crisis. If transit through such straits were subject 
to the discretion of the coastal States, they would unavoidably become involved, 
even if the discretionary power were to be exercised evenhandedly .... The 
ramifications of a refusal or of a permission of transit in whole or in part . . . could, 
albeit legally non-discriminatory, in fact be of quite different military and strategic 
value to the parties to the conflict. . . . The escalation-preventing quality of transit 
passage in times of tension and crisis — i.e., in time of fragile peace — are even more 
important for neutral States in times of armed conflict. 



Robertson 283 

The United States naval manual asserts that the transit passage provisions of 
the LOS Convention are a part of customary international law and interprets 
them as providing very broad rights for passage of belligerent forces in time of 
war for straits bounded by neutral States, stating: 

Customary international law as reflected in the 1982 Law of the Sea Convention 
provides that belligerent and neutral surface ships, submarines and aircraft have a 
right of transit passage through, over, and under all straits used for international 
navigation. Neutral nations cannot suspend, hamper, or otherwise impede this 
right of transit passage through international straits. Belligerent forces transiting 
through international straits overlapped by neutral waters must proceed without 
delay, must refrain from the threat or use of force against the neutral nation, and 
must otherwise refrain from acts of hostility and other activities not incident to 
their transit. Belligerent forces in transit may, however, take defensive measures 
consistent with their security, including the launching and recovery of aircraft, 
screen formation steaming, and acoustic and electronic surveillance. Belligerent 
forces may not use neutral straits as a place of sanctuary nor a base of operations, 
and belligerent warships may not exercise the belligerent right of visit and search 
in those waters. 

The Canadian draft manual has a similar, though less extensive provision, as 
follows: 

Warships and military aircraft of a belligerent state may exercise the right of transit 
passage, that is, of essentially unimpeded passage or overflight in an appropriate 
state of readiness with appropriate sensors activated, through certain straits where 
the transit passage [regime?] applies. . . ."" 

The German draft manual does not address the issue of passage through neutral 
straits separately from the question of passage through the territorial sea generally. 
It is to be recalled that the German manual appears to be ambiguous as to whether 
the right of innocent passage for belligerent warships through the territorial sea 
of a neutral State may be suspended. 

Based on the foregoing, both logic and State practice lead to the conclusion 
that the peacetime regime of transit passage, as formulated in Part III of the LOS 
Convention, is equally applicable in time of armed conflict to the passage of 
belligerent warships (including submerged submarines) and aircraft through 
straits bounded by neutral States. 

One further aspect of the straits question deserves at least brief mention before 
leaving this subject; that is, the issue of straits governed by treaty regimes. As will 
be recalled, Article 35 of the LOS Convention excepted from the transit passage 
regime, "straits in which passage is regulated in whole or in part by long-standing 
international conventions in force specifically relating to such straits.*' During 
the course of the negotiations in UNCLOS III, various delegates suggested that 
this exception would apply to the Straits of the Dardanelles and Bosporus 



284 Readings on International Law 

(Turkey) , the Strait of Magellan (Argentina and Chile,) the Belts and Sound 
(Sweden-Denmark,) and the Aaland Strait (Sweden-Finland). 

A detailed examination of each of these Conventions is beyond the scope of 
this paper. Dr. Rauch, however, raises the question in his monograph as to 
whether all of these straits are actually "regulated" by the Conventions referred 
to in the footnotes so as to qualify for exemption from the transit passage regime. 
Although acknowledging that at least two leading international authorities in the 
field disagree with him as to the Danish Straits and the Strait of Magellan, he 
concludes, based on the analysis therein as well as his prior works to which he 
refers, that except for the Turkish Straits, "would-be claimants to Art. 35(c) status 
simply fail to make a credible case." The United States' manual, though not 
explicitly excluding other treaty-regime straits, mentions only the Turkish Straits 
as being entitled to this exception to the regime of transit passage. 

In the case of the Turkish Straits, in time of war, Turkey being a neutral, the 
Montreux Convention provides for freedom of transit for neutral warships but 
prohibits passage of belligerent warships except under certain exceptional cir- 
cumstances delineated in the Convention. If Turkey is at war, Turkey has 
complete discretion as to the transit of warships. 

C. The Contiguous Zone. As discussed above, the contiguous zone is an area 
of limited jurisdiction. The competence of the coastal State in this zone is limited 
to the exercise of the control necessary to prevent infringement of the coastal 
State's customs, fiscal, immigration, and sanitary regulations within its territory 
or territorial sea. The International Law Commission explicidy refused to 
recognize special security rights for the contiguous zone, and the 1958 and 1982 
Conventions adopted the ILC's formula. The contiguous zone is, for all intents 
and purposes, the equivalent of the high seas insofar as the conduct of hostile 
operations by belligerents and the exercise of belligerent or neutral rights and 
obligations are concerned. Thus, the extension of the outer limit of the con- 
tiguous zone from its former distance of twelve miles from the baseline to 
twenty-four nautical miles as provided by article 33 of the 1982 LOS Convention 
should not be of any significance in the application of the law of armed conflict 
at sea. 

The contiguous zone is, of course, overlapped by the exclusive economic 
zone and the continental shelf. Insofar as the rules of armed conflict may be 
affected by the creation of these latter juridical areas in the oceans, which will be 
discussed below, those same effects would be felt in the contiguous zone. 

D. Hie Exclusive Economic Zone, The adoption of the concept of an exclusive 
economic zone (EEZ) in the 1982 Law of the Sea Convention represents the 
culmination of a long-continued effort by some segments of the international 
community to separate "jurisdiction" over the natural resources of ofBhore 



Robertson 285 

waters from "sovereignty" manifest in the territorial sea. As stated earlier, by 
virtue of the territorial sea owing its origin to the law of neutrality, its "application 
to the right of fishing is accidental." In the words of Dr. Rauch, "[The EEZ] is 
the synthesis of the fisheries zone, epicontinental sea, patrimonial sea, and the 
continental shelf concept which started with the Truman Proclamation of 
1945." 115 

Although the coastal State exercises "sovereign rights" over the EEZ for the 
purpose of exploring and exploiting, managing and conserving its living and 
non-living resources and "jurisdiction" to the extent provided in the Convention 
with regard to the establishment and use of artificial islands, installations and 
structures, marine scientific research, and the protection and preservation of the 
marine environment, it is clear that the EEZ is not incorporated into the 
territorial regime of the coastal State as are internal waters and the territorial 
sea. Reinforcing the distinction between the territorial sea and the exclusive 
economic zone is paragraph 2 of Article 58, which states, "Articles 88 to 115 
[from the High Seas Part of the Convention] and other pertinent rules of 
international law apply to the exclusive economic zone in so far as they are not 
incompatible with this Part." Article 89, which is among those articles so 
incorporated into the exclusive-economic-zone Part of the Convention, states, 
"No State may validly purport to subject any part of the high seas to its 
sovereignty." 

Whether one considers the EEZ as part of the high seas, as some authorities 

118. 

contend, or as an area that is sui generis, as contended by others, it is clear that 
it is a zone that is neither territorial nor has wholly the characteristics of high 
seas. It is a zone in which competences are allocated to coastal States on the one 
hand and all other States on the other so as to balance the need of the coastal 
State to have sufficient authority to exploit and manage the economic resources 
(article 56 (1)) against the need of all other States to retain high seas navigation 
and communications freedoms and uses related to such freedoms (article 58 (1)). 
Article 58(1) describes these high-seas freedoms as follows: 

1. In the exclusive economic zone, all States, whether coastal or land-locked, 
enjoy, subject to the relevant provisions of this Convention, the freedoms referred 
to in article 87 of navigation and overflight and of the laying of submarine cables 
and pipelines, and other internationally lawful uses of the sea related to these 
freedoms, such as those associated with the operation of ships, aircraft and 
submarine cables and pipelines, and compatible with the other provisions of this 
Convention. 

As stated by Elliot Richardson, the United States Ambassador to UNCLOS 
III: 



286 Readings on International Law 

In the group which negotiated this language it was understood that the freedoms 
in question . . . must be qualitatively and quantitatively the same as the traditional 
high-seas freedoms recognized by international law: they must be qualitatively the 
same in the sense that the nature and extent of the right is the same as the traditional 
high-seas freedoms; they must be quantitatively the same in the sense that the 
included uses of the sea must embrace a range no less complete — and allow for 
future uses no less inclusive — than traditional high-seas freedoms. 

Except for the freedom of fishing, freedom of scientific research, and freedom 
to construct artificial islands and other installations which are related to the 
exploration and exploitation of the resources of the EEZ, the freedoms are 
identical to those enumerated in article 87 as applicable in the high seas. Although 
article 58 is not open-ended, as is article 87 in which the enumeration of high 
seas freedoms is preceded by the term inter alia, the addition of the phrase "and 
other internationally lawful uses of the sea related to these freedoms, such as those 
associated with the operation of ships, aircraft and submarine cables and pipelines" 

1 2ft 

in article 58 seems to serve the same purpose. The balance between the rights 
of coastal States and other States in the EEZ is also reflected in the paragraphs of 
articles 56 and 58 which require both coastal States (article 56(2)) and other States 
(article 58(3)) to have "due regard" to the rights and duties of "other" States and 
coastal States respectively. 

In assessing this balance and applying it to the operations of warships in the 
exclusive economic zone, Professor Oxman concluded as follows: 

[W]arships in principle enjoy freedom to carry out their military missions under 
the regime of the high seas subject to three basic obligations: (1) the duty to refrain 
from the unlawful threat or use of force; (2) the duty to have "due regard" to the 
rights of others to use the sea; and (3) the duty to observe applicable obligations 
under other treaties or rules of international law. The same requirements apply in 
the exclusive economic zone, with the addition of an obligation to have "due 
regard to the rights and duties of the coastal State" in the exclusive economic 

121 

zone. 

Although Oxman was concerned explicitly only with peacetime rights, his 
conclusion is equally applicable in time of armed conflict as well. The juridical 

1 22 

nature of the zone does not change with the transition from peace to war. 
There is thus no basis for concluding that, except for the duty to have due regard 
to the rights of the coastal State for the exploitation of the economic resources 
of the zone, the conduct of hostilities by belligerent States in the exclusive 
economic zone of a neutral State is subject to greater restraints than is their 
conduct on the high seas. Clearly, there is no basis for concluding from the terms 
of the LOS Convention that the EEZ is to be equated to the territorial sea insofar 
as the application of the rules of neutrality are concerned. 



Robertson 287 

Nevertheless, there have been suggestions from States and in the literature 
that some States may regard the regime of the EEZ as encompassing the right of 
coastal States to control military operations in the EEZ. The earliest suggestion 
to this effect which I have discovered was published anonymously in the official 
journal of the Swedish Navy in 1974, and is quoted in English translation in Dr. 
Rauch's monograph as follows: 

For Sweden it is of great interest to prevent, that other States use our exclusive 
economic zone for the deployment of nuclear weapons. The coastal State has to 
make sure that this does not happen. ... In times of war the neutral State has the 
obligation under the 1907 Convention to protect its merchant navy and those of 
other States against military operations. The neutral State is also obliged to prevent 
the use of its sea territory by a belligerent as a base for naval operations against the 
adverse party. The rights and duties layed upon the coastal States in the exclusive 
economic zone will also have to be fulfilled in situations where the coastal State 
remains neutral in a war between third powers. The protection of neutrality in 
this case is evidently — in whole or in part — extended to the exclusive zone. 

At several times during the negotiation of the Law of the Sea Convention, the 
delegate of Sweden made statements concerning the relevance of the Convention 
to the law of neutrality as expressed in Hague XIII. Although the connection 
between the anonymous article and the official statements of the Government 
of Sweden is not readily apparent, Dr. Rauch raises them as a matter of concern. 

Dr. Rauch analyzes several bases on which a claim might be made that the 
neutrality rules of Hague XIII applicable to the territorial sea were also applicable 
to the EEZ. One is the similarity of language in Hague XIII and the LOS 
Convention. While acknowledging that the French text of the LOS Convention 
uses the terms droit souverain and juridiction to describe the jurisdiction exercised 
by the coastal State in the EEZ, which are also the terms used in the French text 
of Hague XIII (the only authentic text), he does not conclude from this that "the 
new concept of the exclusive economic zone is nunc pro tunc to be included in 
the historical scope of application" of Hague XIII. In his view, it is clear that 
what was meant by the terms droit souverain and juridiction in Hague XIII was 
maritime areas subject to the sovereignty of the State — in modern terms, the 
territorial sea and internal waters. But Rauch does not stop at that point; he 
argues that if a State may not subject the EEZ to its sovereignty in time of peace, 
citing article 89, it "amounts to a clear prohibition in time of war to attempt to 
subject the exclusive economic zone to principles of neutrality," since "[t]he 
starting point of the regulations ought to be the sovereignty of the neutral 
State." He concludes that "acts of hostility between belligerents can be 
committed in the exclusive economic zones of neutral States as a legitimate 
exercise of traditional rights under the law of war." 

While Dr. Rauch's conclusion would appear to be irrefutable, at least one 
other thread tying the EEZ to territorialist theories has appeared. At the final 



288 Readings on International Law 

session of the Conference in Montego Bay, Jamaica, in 1982, Brazil declared on 

its signing of the Convention that its government "understands that the 

provisions of the Convention do not authorize other States to carry out military 

exercises or manoeuvres within the exclusive economic zone, particularly when 

these activities involve the use of weapons or explosives, without the prior 

knowledge and consent of the coastal State." Similar statements have also been 

made by the governments of Cape Verde and Uruguay. * These statements 

were contested by statements of the governments of Italy, France, and the United 

1 \) 
States, exercising the right of reply, and have been rejected by Ambassador 

T.T.B. Koh, who was the President of UNCLOS III during the latter part of the 

1 W 1 \A. 

Conference, as well as by Barbara Kwiatkowska in her treatise on the EEZ. 

In addition to its assertions concerning military maneuvers in the EEZ, Brazil 
also requested the Legal Committee of ICAO to hold that the rules of overflight 
of the EEZ were the same as for those over land territory and the territorial sea. 
The Legal Committee rejected this request, holding that such a position was 
totally incompatible with the provisions of the LOS Convention, which equate 
the EEZ with the high seas insofar as freedom of overflight is concerned. 

Although the positions stated by Brazil, Cape Verde, and Uruguay were 
directed explicitly to a peacetime situation, one may infer that they might be 
asserted with respect to the conduct of hostilities and other military operations 
in their exclusive economic zones in time of war. As already developed, this 
position cannot be supported by the terms of the LOS Convention. Nor is it 
supported by the three military manuals that have been examined. The Canadian 
Draft Military Manual provides explicitly in paragraph 703 that, "The general 
area within which the naval forces of belligerents are permitted to conduct 
operations involving the use of force includes: the high seas (including exclusive 
economic zones). ..." The German Manual likewise provides, "[A]s a matter 
of principle acts of naval warfare may be performed as in the high seas also in the 
exclusive economic zones of neutral or non-belligerent states." Although the 
United States's manual does not state the same proposition explicitly, it does so 
by negative implication by defining neutral territory as including only the 
neutral's land, internal waters, territorial sea, and archipelagic waters (if any). 

From the foregoing analysis, it seems incontestable that, despite the assertions 
of a few States and publicists, the exclusive economic zone may be equated to 
the high seas insofar as the application of the law of neutrality is concerned. 

Since the rights of the coastal State in the seabed of the EEZ are exercised in 

1.39 

accordance with the continental-shelf Part of the LOS Convention, discussion 
of hostile military activities or placing of military devices on the seabed of the 
EEZ will be discussed below in the section on the continental shelf. 

E. The Continental Shelf. The continental shelf comprises the seabed and subsoil 
of a coastal State from the outer boundary of its territorial sea to the outer edge 



Robertson 289 

of the continental margin or, for coastal States with margins less than 200 miles, 
to the outer boundary of the exclusive economic zone. For the few coastal 
States which have continental margins wider than 200 miles, the edge of the 
continental margin is determined by a complex formula contained in article 76 
of the Convention which may extend the outer boundary to as much as 350 
miles from the baseline or 100 miles beyond the 2500-meter isobath. 

On the continental shelf the coastal State exercises "sovereign rights for the 
purpose of exploring it and exploiting its natural resources." Unlike the EEZ, 
however, the coastal State's jurisdiction over the continental shelf does not extend 
to the water column or airspace above it, except insofar as is necessary to allow 
the coastal State to construct artificial structures on the continental shelf for the 
purpose of exploiting it and establishing reasonable safety zones around such 
structures. In this connection, the provisions of Article 60 of the EEZ Part of the 
Convention apply mutatis mutandis to the continental shelf. The Convention 
provides explicidy that "the rights of the coastal State over the continental shelf 
do not affect the legal status of the superjacent waters or of the air space above 
those waters" and that "[t]he exercise of the rights of the coastal State over the 
continental shelf must not infringe or result in any unjustifiable interference with 
navigation and other rights and freedoms of other States as provided for in this 
Convention." Conversely, by incorporation of article 60 by reference into 
the continental-shelf Part of the Convention, "All ships must respect these safety 
zones [around continental-shelf installations] and shall comply with generally 
accepted international standards regarding navigation in the vicinity of artificial 
islands, installations, structures and safety zones." Thus, the waters above the 
continental shelf are governed by the regime of the exclusive economic zone 
insofar as they are within 200 miles of the baseline and by the regime of the high 
seas where they are beyond that limit. 

Since the continental shelf itself has a status different from the waters 
superjacent to it, it is appropriate to discuss acts of warfare that may be conducted 
in the water column separately from those that may be conducted on the seabed 
itself. 

1. Waters Superjacent to the Continental Shelf. As the previous dis- 
cussion of the exclusive economic zone has concluded, the waters of the EEZ 
have the same characteristics as those of the high seas with respect to the conduct 
of hostilities by belligerents therein and the application of the law of neutrality 
thereto, save only for the duty to have "due regard" for the rights of the coastal 
State in the zone. A fortiori the waters above the continental shelf beyond the 
exclusive economic zone are high seas in the strictest sense of that term and are 
not in any way different from other parts of the high seas with respect to 
belligerent activity save only the duty to respect the safety zones and comply with 
international standards regarding navigation in the vicinity of artificial islands, 
installations, structures, and safety zones. Thus, the only restriction on the law 



290 Readings on International Law 

of armed conflict at sea that would be made necessary by the emergence of the 
continental shelf as a defined area of the oceans is to incorporate cautionary notes 
concerning respect for and non-interference with legitimate activities and 
structures utilized by the coastal State for exploitation of the natural resources of 
the shelf. 

2. The Seabed of the Continental Shelf. Since the relevant articles of 
both the 1958 Continental Shelf Convention and the LOS Convention 14 
recognize that the coastal State exercises only "sovereign rights for the purpose 
of exploiting" the shelf and its resources, they visualize that other States may use 
the seabed of the shelf for other purposes not inconsistent with and not interfering 
with the coastal State's exclusive rights of exploitation of natural resources. 
Although India introduced a proposal at UNCLOS I that would have prohibited 
the building of military bases or installations on the continental shelf "by the 
coastal State or any other State," this proposal was defeated. A similar proposal, 
but limiting the prohibition to States other than the coastal State, was put forth 
by Mexico and Kenya at an early stage of UNCLOS III. This proposal did not 
find its way into the negotiating texts nor the final Convention. The negotiat- 
ing history of the two most important international instruments would thus seem 
to suggest that, subject to the restrictions on the use of the seabed found in the 
Conventions themselves, emplacing weapons or other military devices on the 
seabed of the continental shelf, both within the 200-mile EEZ and beyond, is 
permissible as the exercise of a freedom of the high seas. The military activities 
on the seabed of the continental shelf most often discussed are the laying of mines 
or cable arrays for underwater detection and surveillance. 

Article 60 of the LOS Convention, which is applicable to the continental shelf 
as well as to the EEZ, contains the relevant restrictions on the construction of 
installations on the seabed. It provides in part as follows: 

Article 60 

Artificial islands, installations and structures in the 

exclusive economic zone 

1. In the exclusive economic zone, the coastal State shall have the exclusive 
right to construct and to authorize and regulate the construction, operation and 
use of: 

(a) artificial islands; 

(b) installations and structures for the purposes provided in article 56 and 
other economic purposes; 

(c) installations and structures which may interfere with the exercise of the 
rights of the coastal State in the zone. 

2. The coastal State shall have exclusive jurisdiction over such artificial islands, 
installations and structures, including jurisdiction with regard to customs, fiscal, 
health, safety and immigration laws and regulations. 

3. Due notice must be given of the construction of such artificial islands, 



Robertson 291 

installations or structures. . . 

4. The coastal State may, where necessary, establish reasonable safety zones 
around such artificial islands, installations and structures . . . 

6. All ships must respect these safety zones. . . 

7. Artificial islands, installations and structures and the safety zones around them 
may not be established where interference may be caused to the use of recognized 
sea lanes essential to international navigation. 

(Emphasis supplied) 

A careful reading of the quoted portion of Article 60 reveals that a coastal State 
may regulate (under a reasonable interpretation this would also include 
"prohibit") the construction, operation, and use of artificial islands whatever their 
purposes, other installations and structures whose purposes are the economic 
exploration or exploitation of the EEZ or continental shelf, and those installations 
erected by others which may interfere with the rights of the coastal State in the 
zone. In other words, a coastal State has the exclusive right to construct and 
regulate artificial islands in the EEZ and on the continental shelf. But it does not 
have the right to regulate or prohibit installations and structures other than 
artificial islands unless they are for an economic purpose or would interfere with 
the coastal State's right to economic exploitation of the zone or shelf. In addition, 
neither the coastal State nor any other State may construct or operate structures 
or installations where they will interfere with navigation (para. 6), and other 
States must respect the safety zones established by the coastal State. Furthermore, 
the constructing State need not give notice of such installations or structures 
unless they are of such a type that their location or operation "may interfere with 
the exercise of the rights of the coastal State" (para. 3). Of course, the State other 
than the coastal State engaging in such activities must abide by the requirements 
of "due regard" for the rights of the coastal State and for the interests of all States 
in their exercise of the freedoms of the high seas. 

Under the foregoing interpretation, which is believed to be the correct one, 
there is no prohibition against States other than the coastal State employing or 
emplacing weapons or detection devices on the seabed of the EEZ or continental 
shelf if they would not interfere with the coastal State's exploitation of the 
resources of the EEZ or continental shelf and if they are in compliance with the 
explicit restrictions contained in article 60. 

Although the Partial Test Ban Treaty of 1963, 152 the Seabed Treaty of 1971, 153 
and the Tlatelolco Treaty of 1967 contain certain restrictions on the emplace- 
ment of nuclear weapons and other weapons of mass destruction in some areas 
of the seabed, I have not included a discussion of their provisions, since the 
subjects of those treaties are beyond the scope of this paper. 



292 Readings on International Law 

F, Archipelagic Waters. Under the traditional law of the sea, and under most 
circumstances in the 1982 LOS Convention, islands are treated in the same 
manner as mainlands with respect to the drawing of baselines and delimitation 
of the territorial sea and other coastal zones. The 1982 Convention, however, 
recognized a special exception in the case of archipelagic States, which are 
permitted to draw archipelagic baselines enclosing a newly recognized category 
of waters — archipelagic waters. 

Archipelagic waters are created when an archipelagic State meeting the 
qualifications of article 47 of the LOS Convention draws archipelagic baselines 
joining the outermost points of the outermost islands and drying reefs of the 
archipelago. The waters enclosed thereby are denominated "archipelagic 
waters." 

The terms of article 47 permit archipelagic baselines to be as much as 100 
nautical miles long, with up to three percent of the total number of baselines as 
much as 125 miles in length. As can be seen by examining a map of Indonesia, 
which is the archetypical archipelagic State, adoption of archipelagic baselines 
can create archipelagic waters of enormous proportions. Indonesia stretches 
approximately 3,000 miles east to west and almost 1,000 miles north to south. 
Indonesia's archipelagic baselines are over 8,000 miles in length and enclose some 
666,000 square nautical miles of ocean space. They also encompass the important 
straits of Sunda, Sumba, Lombok, Ombai, Molucca, and Macassar as well as a 
number of important internal passages within the archipelago. 

The sovereignty of the archipelagic State extends to all waters enclosed by 
archipelagic baselines, regardless of their depth or distance from the coast (article 
49). The sovereignty also extends to the airspace above and the bed and subsoil 
of the archipelagic waters. Essentially, the only limitations on the sovereignty of 
the archipelagic State over archipelagic waters are the rights preserved in all other 
States (1) to archipelagic sea lanes passage and air routes through archipelagic sea 
lanes as defined by the archipelagic State, or if none are designated then through 
the routes normally used for international navigation (article 53), and (2) to 
innocent passage through other areas of archipelagic waters (article 52). Within 
archipelagic waters, archipelagic States may draw closing lines for the delimitation 
of internal waters in accordance with the rules for drawing baselines for the 
territorial sea (article 50). The archipelagic State's territorial sea, contiguous zone, 
exclusive economic zone and continental shelf extend outward from the ar- 
chipelagic baselines. 

1. Archipelagic Waters Outside of Archipelagic Sea Lanes. The legal 
character of archipelagic waters is essentially identical to that of the territorial sea. 
On this basis Dr. Rauch concludes without serious discussion that "belligerents 
in future will have to respect archipelagic waters the same way as they have to 
respect the territorial sea of the coastal State." 1 The United States manual adopts 



Robertson 293 

the same conclusion, although it precedes it with a cautionary statement, as 
follows: 

The balance of neutral and belligerent rights and duties with respect to neutral 
waters is, however, at its most unsetded in the context of archipelagic waters. 

Belligerent forces must refrain from acts of hostility in neutral archipelagic waters 
and from using them as a sanctuary or a base of operations. 

In its chapter on the rights and duties of neutral powers, the Canadian draft 
manual likewise equates archipelagic waters of a neutral State to the territorial 
sea of such a State, stating: 

1. Neutral waters are the inland waters, internal waters, territorial seas and, 
where applicable, archipelagic seas of states which are not participants in an 
international armed conflict. . . . 

2. Any act of hostility, as, for example, the seizure of or attack upon an enemy 
vessel within neutral waters is a breach of neutrality and as such is forbidden. 158 

In the chapter on conduct of hostilities at sea, however, in the paragraph entitled 
"General Area of Naval Warfare," the Draft Manual does not include archipelagic 
waters of belligerents in the recitation of areas of the sea open to the conduct of 
hostilities. That paragraph provides: 

1. The general area within which the naval forces of belligerents are permitted 
to conduct operations involving the use of force includes: the high seas (including 
exclusive economic zones), the territorial sea and internal waters of belligerents, 
the territory of belligerents accessible to naval forces, and the air space over such 
waters and territories. 159 

These apparent inconsistencies undoubtedly reflect the fact that the Canadian 
Manual is still in draft form and will be addressed in the review process. 

Although the German Manual states that archipelagic waters of the parties to 
the conflict are legitimate areas for the performance of acts of naval warfare, 
its chapter 1 1 on the law of neutrality refers only to the "territorial waters'* of 
neutrals. In paragraph 1012 of the preceding chapter on armed conflict at sea, 
however, the Manual states that "The rights of coastal and archipelagic states 
must ... be taken into due consideration." The German Manual, like the 
Canadian one, is also in draft form and subject to further revision. 

What has been said above with respect to the effects of the broadening of the 
territorial sea as a result of the adoption of a twelve-mile breadth and the 
liberalization and abuse of straight baselines applies with even more vigor to 
archipelagic waters. If, in a situation in which an archipelagic State such as 
Indonesia is a neutral, these vast areas of archipelagic waters which were formerly 
high seas are to be removed from the area open to the conduct of naval hostilities 



294 Readings on International Law 

and to become "neutral waters" with all the consequences that that term implies, 
both for the rights and obligations of neutral States as well as to the belligerent 
States, one may wonder whether either neutrals or belligerents will be able to 
live up to their obligations. If the narrow Norwegian territorial sea was a "covered 
way" enabling German submarines to transit to and from the high seas sheltered 
from attack by British naval and air forces, neutral archipelagic waters could 
become a vast, protected superhighway providing a tempting haven for escape 
from attack and as a secret base for operations. The vastness of such waters 
certainly renders dubious the so-called twenty-four-hour rule of Hague XIII 
and increases manifold the burdens imposed on a neutral State by the obligation 
to exercise surveillance of its neutral waters. This is true whether the 
archipelagic State chooses to allow belligerent warships to continue to exercise 
the right of "mere passage" through its archipelagic waters or deny such passage, 
as would be permitted if archipelagic waters are analogized to the territorial sea 
in this respect. In either event, the burdens of surveillance and enforcement 
on the neutral State would be heavy, and the neutral's failure or inability to live 
up to these obligations would be likely to embroil it in the conflict. This danger 
is recognized in the United States manual, which provides: 

The neutral archipelagic nation has an affirmative duty to police its archipelagic 
waters to ensure that the inviolability of its neutral waters is respected. If a neutral 
nation is unable or unwilling effectively to detect and expel belligerent forces 
unlawfully present in its archipelagic waters, the opposing belligerent may under- 
take such self-help enforcement actions as may be necessary to terminate the 
violation of neutrality. Such self-help enforcement may include surface, subsurface, 
and air penetration of archipelagic waters and airspace and the use of proportional 

r 168 

force as necessary. 

2. Archipelagic Sea Lanes and Archipelagic Sea Lane Passage. The 

waters of archipelagic sea lanes and the airspace above them are subject to a 
different navigation regime than are archipelagic waters outside such sea lanes. 
An archipelagic State may not deny to ships and aircraft of other States the right 
of archipelagic sea lane passage through its archipelagic waters in time of peace. 
In designating such passages, which will normally be fifty nautical miles in width, 
the archipelagic State must include for ships "all normal navigational chan- 
nels." If the archipelagic State fails to make such designations, "the right of 
archipelagic sea lanes passage may be exercised through the routes normally used 
for international navigation." As previously stated, archipelagic sea lanes 

172 

passage, in legal terms, is essentially identical to transit passage through straits. 
In exercising their rights of archipelagic sea lanes passage, foreign ships and aircraft 
may proceed in their "normal mode" but only for the purpose of "continuous, 
expeditious and unobstructed transit between one part of the high seas or an 
exclusive economic zone and another part of the high seas or an exclusive 



Robertson 295 

economic zone," and they must observe the same types of rules and regulations 
that are applicable in transit passage through straits. 

Since transit passage and archipelagic sea lanes passage are to all intents and 
purposes legally identical, the same logic which compelled the conclusion that 
in time of war belligerent warships and military aircraft may exercise the right of 
transit passage through neutral straits would lead to the same conclusion with 
respect to archipelagic sea lanes passage through archipelagic sea lanes. 

This conclusion is accepted by the United States manual, which states that: 

Belligerent ships or aircraft, including submarines, surface warships, and military 
aircraft retain the right of unimpeded archipelagic sea lanes passage through, over, 
and under neutral archipelagic sea lanes. Belligerent forces exercising the right of 
archipelagic sea lanes passage may engage in those activities that are incident to 
their normal mode of continuous and expeditious passage and consistent with their 

175 

secunty. 

The Canadian Manual does not deal with archipelagic sea lane passage 
separately but rather couples it with transit passage, as follows: 

Warships and military aircraft of a belligerent state may exercise the right of transit 
passage, that is, of essentially unimpeded passage or overflight in an appropriate 
state of readiness with appropriate sensors activated, through certain straits where 
the transit passage [regime?] applies or through archipelagic sea lanes. 

In interpreting what the United States manual means when it states "activities 
that are incident to their normal mode," one needs to turn to the provisions of 
the manual dealing with transit passage through neutral straits, where it is stated: 

Belligerent forces in transit may . . . take defensive measures consistent with their 
security, including the launching and recovery of aircraft, screen formation 
steaming, and acoustic and electronic surveillance. 

Although archipelagic sea lanes passage through archipelagic waters may be 
the legal equivalent of transit passage through straits, geographical factors may 
create large differences in practical effect. A strait is usually a geographical 
phenomenon of small dimensions, usually only a few miles from entrance to exit, 

1 7ft 

requiring only a few hours, at most, for passage. Usually there is only one 
entrance and one exit. On the other hand, taking Indonesia as the prime 
example, archipelagic waters include vast areas, with numerous internal straits 
and passages, dictating multiple, intersecting archipelagic sea lanes. A naval ship 
or formation entering at one extremity of the archipelago and steaming at a 
wartime cruising speed of twenty knots, for example, would require over six 
days to traverse its entire East-to-West dimension using the most direct route. 
The ship or formation could, through the use of intersecting archipelagic sea 



296 Readings on International Law 

lanes, emerge at any of a number of exits, shielded the entire time from air, 
surface, or submarine attack from enemy forces. One may question whether it 
is reasonable to assume that an enemy force would accept the traditional restraints 
on hostile activities (which presumably would include surveillance) for passage 
of such great span and duration. 

3. Concluding Remarks Concerning Archipelagic Waters. It is ap- 
parent from the foregoing discussion that of the "new zones" recognized in the 
1982 LOS Convention, archipelagic waters present the most difficult issues. In 
a paper prepared for delivery soon after the close of UNCLOS III, Rear Admiral 
Bruce Harlow, a vice-chairman of the United States delegation to that Con- 
ference, posed a number of questions concerning the impact archipelagic waters 
would have on the law of neutrality. He stated: 

What then is the solution? When a neutral cannot or will not take meaningful 
measures to preclude potential violations, may a belligerent step in and undertake 
the mission of verifying that neutral waters are free of the enemy? Or would this 
contravene the traditional rule of inviolability of neutral sovereignty? If a departure 
from this rule were permitted for surveillance missions, would such missions have 
to be identified so that they would not be confused with prohibited belligerent 
operations? If the surveillance/verification mission detected a violator, would the 
matter have to be referred to the neutral for action, or could those engaged in 
surveillance attack the violator pursuant to their belligerent right to take corrective 
measures against known violations? What would happen if two opposing surveil- 
lance forces met? May aircraft be used for surveillance/verification missions despite 
the traditional prohibition on overflight of sovereign waters? What standard would 
justify initiation of surveillance/verification missions: in the discretion of the 
belligerent; upon a reasonable determination that the enemy might use neutral 
waters; upon determination that the enemy was using neutral waters? What would 
be the impact of a pattern of prior abuses without evidence of a present violation? 
Would a different standard apply for a neutral archipelagic state that was willing, 
but plainly unable, to take actions that would effectively ensure that neutrality 
violations were precluded, than in the case of another neutral whose words or 
deeds demonstrated a clear unwillingness, regardless of the level of its 
capabilities? 

Except for Dr. Rauch's monograph, Admiral Harlow's ruminations, and the 
United States Manual, it would appear that the relationship between the status 
of archipelagic waters and the law of armed conflict at sea (including the law of 

1 R 1 

neutrality), is largely unexamined in the published legal literature. As can be 
seen from the foregoing discussion, archipelagic waters pose the most difficult 
problems for a mechanical application of traditional rules of naval warfare and 
neutrality to the zones created in the "new" law of the sea. It is submitted that 
it is unlikely for the traditional rules to survive unchanged in the event of a naval 
conflict in which archipelagic waters of significant dimensions come into play, 
either as neutral waters or waters of either belligerent party. 



Robertson 297 

G. The Area. According to the 1982 U.N. Convention on the Law of the Sea, 

the "Area" is "the sea-bed and ocean floor and subsoil thereof, beyond the limits 

i r? 
of national jurisdiction.'* In effect, this means that the seabed beyond the outer 

edge of the continental shelf of any State comprises the Area. The legal status of 

the waters superjacent to the Area and the airspace above those waters is not 

1 ft"X 

affected by the creation of the Area. In essence, the freedoms of the high seas 
apply to these waters and airspace. 

Part XI of the Convention, which governs activities in the Area, including 
the regime for exploration and exploitation of its resources, is the most con- 
troversial Part of the Convention. Unlike those Parts of the Convention 
heretofore discussed in this Report, Part XI has not been regarded as reflective 
of customary international law. The United States and several other States of 
the developed world have assigned as their reason for refusal to become parties 
to the Convention the unacceptability of Part XI, and some have enacted interim 
deep-sea mining codes that permit exploitation of the seabed beyond national 

1 R5 

jurisdiction under national laws. Nevertheless, even those States which have 
refused to accept the detailed regime for mining the deep seabed contained in 
Part XI accept the fact that whether the resources of the deep seabed are 
developed in accordance with Part XI or some successor regime or in accordance 
with national laws, no State may claim or exercise sovereignty over the seabed 

1 RA 

and subsoil beyond the limits of national jurisdiction. For that reason it is 
appropriate to include a paragraph or two about the implications of the existence 
of such an area for the law of armed conflict at sea. For the sake of convenience, 
it will be referred to as the "Area," even though that term is not accepted by 
those States who object to Part XI of the Convention. 

Since the Area includes only the seabed, ocean floor, and subsoil thereof, the 
only foreseeable impact it might have on hostile activities in the water column 
and airspace above it is in the possible interference between the platforms and 
other gear used by those who may be engaged in activities exploiting the seabed 
(presumably neutrals) and belligerents engaging in hostile activities against each 
other. With respect to such possible interferences, the LOS Convention provides 
that the freedoms of the high seas "shall be exercised by all States with due regard 
for the interests of other States in their exercise of the freedom of the high seas, 
and also with due regard for the rights under this Convention with respect to activities in 
the Area." 1 * 7 

The creation of the "Area," whatever form it may ultimately take, should thus 
have no more impact on the conduct of armed hostilities on the high seas than 
on other activities that take place on the open ocean, such as fishing and scientific 
research. 



298 Readings on International Law 

VI 
Mine Warfare 

Although all weapon systems and platforms are affected by the principles and 
considerations which have been addressed above, naval mines are probably the 
most acutely affected, since, except for rarely used unanchored mines, they are 
usually laid in shallow waters, placing them within one of the zones subject to 
coastal State jurisdiction. It is thus appropriate to include comments explicitly 
directed to mine warfare in addition to the general discussion above in section 
V.E. pertaining to the continental shelf. 

Hague Convention (VIII) Relative to the Laying of Automatic Contact Mines 

is the only treaty law governing the emplacement and employment of naval 

1 fts 
mines. Hague VIII contains no geographical limitations on where mines may 

be employed other than the rather vague geographical term "off the coast and 

ports of the enemy" in Article 2 and "off their coasts'* (referring to neutral coasts) 

in article 4. As pointed out by Professor Howard Levie in his recent book, Mine 

1 RQ 

Warfare at Sea, articles originally proposed by the British delegation to the 
Hague Conference would have limited the laying of anchored automatic 
submarine contact mines beyond three nautical miles from the low-water mark 
along the whole extent of the coasts of belligerent States (friendly and enemy) 
with an extension allowed to ten nautical miles off defended ports. Because 
of what Professor Levie describes as "strange twists" in negotiation and par- 
liamentary complications, all references to geographical limitations (other than 
the two mentioned above) were dropped from the Convention. The negotiation 
thus focused on restrictions on minelaying generally applicable, regardless of area. 
The result was, as stated by Sir Ernest Satow, the British delegate, that "the 
Convention as adopted imposes upon the belligerent no restriction as to the 
placing of anchored mines, which consequendy may be laid wherever the 
belligerent chooses, in his own waters for self-defense, in the waters of the enemy 
as a means of attack, or finally on the high seas, ..." 

A proposal by the Dutch delegation which would have prohibited the laying 
of mines so as to bar passage through straits met a similar fate. Rather than 
include an article on straits, the final report of the Third Commission merely 
included a statement that: 

[T]he committee decided unanimously to suppress all provisions relating to straits, 
which should be left out of the discussion in the present Conference. It was clearly 
understood that under the stipulations of the Convention to be concluded nothing 
whatever has been changed as regards the actual status of straits. 

After examining the practice of States in all conflicts since the adoption of 
Hague VIII in 1907, Professor Levie concludes that: 



Robertson 299 

[TJoday the practice of nations is that there is only one geographical limitation on 
belligerent minelaying — they may not be laid in the territorial sea or inland waters 
of neutrals. 

It should be remembered, however, that during most of the period covered by 
Professor Levie's study, the breadth of the territorial sea was generally regarded 
as extending only three nautical miles from baselines which were almost 
uniformly drawn along the low- water mark of the coast line. 

As developed in sections V.D. and E. above, the special economic and resource 
jurisdiction exercised by States in their EEZs and continental shelves does not 
prohibit the emplacement or employment of weapons (including mines) on the 
seabed or in the waters of the EEZ and continental shelf unless they would 
interfere with the coastal State's exploitation of the resources of the EEZ or the 
continental shelf. On the other hand, coastal States exercise full sovereignty over 
their internal waters, the territorial sea, and archipelagic waters. The territorial 
sea is subject to the right of innocent passage, and where it embraces a strait used 
for international navigation, also to the regime of transit passage. Archipelagic 
waters are subject to the right of innocent passage, and in archipelagic sea lanes 
(where none are designated, the routes normally used for international naviga- 
tion), to the right of archipelagic sea lane passage. In principle, then, the same 
rules should apply to expanded territorial seas and to archipelagic waters as applied 
to the territorial sea prior to its increase in breadth to twelve nautical miles. 
Likewise, since archipelagic sea lanes passage is substantially identical to transit 
passage through international straits, in principle, the rules for mining archipelagic 
sea lanes should be the same as those for international straits. As we saw in Section 
V., however, rules applicable to a narrow territorial sea or a strait of limited 
geographical dimension may have a substantially different effect when applied to 
areas having the same legal characteristics but of vastly different geographical size. 
Nevertheless, the military manuals and draft manuals that have been examined 
(U.S., Canada, Germany), appear to accept the same rules for the mining of 
expanded territorial seas and archipelagic waters as previously have applied to 
internal waters and the territorial sea. The United States Manual states: 

9.2.2 Peacetime Mining. Consistent with the safety of its own citizenry, a nation 
may emplace both armed and controlled mines in its own internal waters at any 
time with or without notification. A nation may also mine its own archipelagic 
waters and territorial sea during peacetime when deemed necessary for national 
security purposes. If armed mines are emplaced in archipelagic waters or the 
territorial sea, appropriate international notification of the existence and location 
of such mines is required. Because the right of innocent passage can be suspended 
only temporarily, armed mines must be removed or rendered harmless as soon as 
the security threat that prompted their emplacement has terminated. Emplacement 
of controlled mines in a nation's own archipelagic waters or territorial sea is not 
subject to such notification or removal requirements. 



300 Readings on International Law 

Naval mines may not be emplaced in the internal, territorial, or archipelagic 
waters of another nation in peacetime without that nation's consent. Controlled 
mines, however, may be emplaced in international waters beyond the territorial 
sea subject only to the requirement that they do not unreasonably interfere with 
other lawful uses of the oceans. . . . 

9.2.3. Mining During Armed Conflict. Naval mines may be lawfully 
employed by parties to an armed conflict subject to the following restrictions: 

198 
2. Mines may not be emplaced by belligerents in neutral waters. 

6. Naval mines may be employed to channelize neutral shipping, but not 
in a manner to impede the transit passage of international straits or 
archipelagic sea lanes passage of archipelagic waters by such shipping. 

8. Mining of areas of indefinite extent in international waters is 
prohibited. Reasonably limited barred areas may be established by 
naval mines, provided neutral shipping retains an alternate route 
around or through such an area with reasonable assurance of safety. 

The Canadian Manual's paragraph on naval mines contains no reference to 
geographic limitations, confining itself to quoting verbatim Articles 1 through 3 
of Hague VIII. One must determine geographic limitations for mining by 
turning to other provisions of the Manual dealing with areas of operations and 
defining neutral waters. The former of these permits the conduct of operations 
using force (presumably including mines) on the high seas (including EEZs) and 
the territorial sea and internal waters of belligerents. The latter forbids acts of 
hostility within neutral waters, which are defined as the inland waters, internal 
waters, territorial seas, and archipelagic seas of States which are not participants 
in the international armed conflict. It thus appears that while the Canadian 
Manual would prohibit the laying of mines in neutral archipelagic waters, it takes 
no position as to whether a belligerent may mine an opposing belligerent's 
archipelagic waters. It is also silent as to whether any particular restrictions apply 
with regard to mining international straits. 

The German Manual deals with naval mines in both a peacetime and wartime 
environment and in the context of protective, defensive and offensive mining, 
which it defines as follows: 

In laying mines the following kinds are distinguished: 

— protective mining, i.e., laying mines in friendly territorial and internal 
waters. 

— defensive mining, i.e., laying mines in international waters for the protection 
of passages, ports and their entrances. 

— offensive mining, i.e., laying mines in hostile territorial and internal waters 
or in waters predominantly controlled by the adversary. 

The Manual contains no explicit provisions against mining of neutral waters, 
but the paragraph on Scope of Application of the rules states that: 



Robertson 301 

[T]he space in which acts of naval warfare within the meaning of paragraph 1014 
may be performed comprises: 

— the territory of the parties to the conflict accessible for naval forces. 

— the internal waters, the archipelagic waters and the territorial sea of the 
parties to the conflict. 

— the high seas, and 

— the airspace over these land and sea areas. 

Peculiarly, paragraph 1014 does not include "mining" as one of the acts of 
naval warfare, nor, for that matter, does it include attacking or sinking of enemy 
warships. Presumably these ambiguities will be clarified upon further revision of 
the Draft Manual. Assuming, for the purpose of the discussion, however, that 
the limitations in the "Scope of Application" paragraph are meant to apply to 
mine warfare, it would appear that the German Draft Manual would equate the 
archipelagic waters of belligerent parties to the territorial sea and would authorize 
their mining under the same rules that would apply to the territorial sea. 

The foregoing discussion suggests that neither the conventional law of mine 
warfare nor the customary practice of States has provided very clear guidelines 
as to the geographical limits of the employment of mines in naval conflict. The 
only settled principles are that in the era of the three-mile territorial sea it was 
lawful for a belligerent to employ mines in its own and its enemy's territorial sea 
and internal waters and that it was unlawful to employ them in the territorial sea 
and internal waters of a neutral State. Although there have been attempts to 
preserve freedom of navigation through international straits, and the United 
States Manual states that it is unlawful to lay mines "in a manner to impede the 
transit passage of international straits," Professor Levie's study concludes that 
passage through straits "has been barred by mines in past conflicts and undoub- 
tedly will be again in the future." 

Archipelagic waters present an even more difficult problem. As discussed 
earlier, they are subject to the full sovereignty of the archipelagic State and in 
their legal characteristics are substantially identical to the territorial sea. Techni- 
cally, then, the same principles that govern the mining of the territorial sea, 
whether of a neutral or a belligerent, should govern the archipelagic waters, and 
by the same rationale, the principles applicable to international straits should apply 
to archipelagic sea lanes. Either expressly or impliedly, the three service manuals 
examined seem to accept these consequences. Whether this makes sense and will 
form a basis for an effective regime in time of conflict seems open to question. 
The vast areas encompassed within archipelagic waters and the great lengths of 
some archipelagic sea lanes would suggest that rule-makers should be careful not 
to create rules that will be honored more in their breach than in their observance. 



302 Readings on International Law 

VII 
Conclusions and Recommendations 

The emergence of a "new" peacetime regime for the oceans, with its 
expansion of existing zones subject to national jurisdiction and the creation of 
new zones also subject to the same or similar forms of jurisdiction, has created 
problems of adaptation of the traditional rules of armed conflict at sea to these 
new developments. As has been found in the foregoing analysis, the current 
national manuals which have been examined (U.S., Canadian and German) have 
adopted rules for the conduct of warfare in these new and expanded zones that 
are identical to those that were applicable prior to their expansion (i.e., the 
twelve-mile territorial sea) or have adopted by analogy the same rules for newly 
created areas that were applicable to zones of much smaller dimension that in 
peacetime have the same legal characteristics (i.e., archipelagic waters). As has 
been suggested by the foregoing analysis, however, the geographic and opera- 
tional factors that determine the nature and scope of naval operations in time of 
armed conflict, and, in particular, the relationships between belligerent and 
neutral forces, render it uncertain as to whether such mechanical application of 
prior rules to new or expanded areas of national jurisdiction serves the best 
interests of either neutrals or belligerents or the humanitarian objectives of the 
rules. Massive expansions of waters that are denied to belligerents for hostile 
operations and for which neutral States have burdensome duties of surveillance 
and control are likely to increase beyond belligerents' power to resist the 
temptation to violate such waters and to overtax the capabilities of neutral States 
to enforce their duties within them. The result may well be increased tension 
between neutral and belligerent States with the consequent danger of widening 
the area of conflict and drawing neutral States into it. 

Admittedly, I have not been able to propose a better solution for the two areas 
that create the most difficult problems — the expanded territorial sea (which may 
be measured from greatly exaggerated baselines) and archipelagic waters. Accord- 
ingly, in suggesting the tentative recommendations for formulating updated rules 
applicable in various zones of the oceans as set forth below, I have adopted the 
formulations of the three manuals. While this to some extent ignores the 
problems I have pointed out with respect to these formulations, it nevertheless 
accepts the three manuals as evidence of an emerging international law in this 
area. 206 With this caveat in mind, I make the following tentative recommenda- 
tions for reformulation of the rules of naval warfare that are affected by the 
emergence of new zones in the "new" law of the sea: 

1 . Subject to other applicable rules of the law of armed conflict at sea, 
hostile operations by naval forces may be conducted on the high seas, the 
territorial sea and internal waters, the land territories, and where applicable the 
archipelagic waters, of the belligerent, any co-belligerent and the enemy. For 



Robertson 303 

this purpose, the high seas include the exclusive economic zone and the waters 
and airspace above the continental shelf. 

2. When such hostile operations are conducted within the exclusive 
economic zone or the waters or airspace above the continental shelf of a neutral 
State, the belligerent States shall, in addition to observing the other applicable 
rules of the law of armed conflict at sea, have due regard to the rights and duties 
of the coastal State for the exploitation of the economic resources of the exclusive 
economic zone and the continental shelf. They shall, in particular, respect 
artificial islands, installations, structures, and safety zones established by neutral 
States in the exclusive economic zone and on the continental shelf. 

3. Neutral waters consist of the internal waters, territorial sea, and where 
applicable, the archipelagic waters, of a State which is not a party to the armed 
conflict. 

4. Within neutral waters, hostile acts by belligerent forces are forbidden. A 
neutral State must exercise such surveillance and enforcement measures as the 
means at its disposal allow to prevent violation of its neutral waters by belligerent 
forces. 

5. Hostile acts within the meaning of paragraph 4 include, inter alia: 

a. Attack or seizure of enemy warships or military aircraft; 

b. Laying of mines; 

c. Visit, search or capture; 

d. Detention of a prize or establishment of a prize court; 

e. Use as a base of operations. 

6. Subject to the duty of impartiality , and under such regulations as it may 
establish, a neutral State may, without jeopardizing its neutrality, permit the 
following acts within its neutral waters: 

a. Innocent passage through its territorial sea, and where applicable 
its archipelagic waters, by warships and prizes of belligerent States; for the 
purpose of exercising the right of innocent passage the warship or prize may 
employ pilots of the neutral State; 

b. Replenishment by a warship of its food, water and fuel sufficient to 
reach a port within its national territory; 

c. Repairs of warships found necessary by the neutral State to make them 
seaworthy; such repairs may not include repair of battle damage nor 
increase their fighting strength. 

7. A belligerent warship may not extend its stay in neutral waters for longer 
than twenty-four hours unless the neutral State grants an extension because of: 

a. The stress of weather, or 

b. The route of innocent passage is of such length as to require more 
than twenty-four hours for passage. 

8. Belligerent warships and military aircraft may exercise the right of transit 
passage through neutral international straits and archipelagic sea lanes passage 



304 Readings on International Law 

through neutral archipelagic waters. While within neutral waters comprising an 
international strait or an archipelagic sea lane, belligerent naval forces are 
forbidden to carry out any hostile act. 

9. Should a neutral State be unable or unwilling to enforce its neutral 
obligations with respect to hostile military activities by belligerent naval forces 
within its neutral waters, the opposing belligerent may use such force as is 
necessary within such neutral waters to protect its own forces and to terminate 
the violation of neutral waters. 

10. A neutral State shall not be considered to have jeopardized its neutral 
status by exercising any of the foregoing neutral rights nor by allowing a 
belligerent State to exercise any of the privileges permitted to a belligerent State. 



Rear Admiral Robertson retired from the Navy in 1976 following an assignment as the Judge 
Advocate General of the Navy. He was serving as the Charles H. Stockton Professor of International 
Law at the Naval War College at the time this article was written. 



Notes 

1 . This paper is a revised version of a "report" prepared by the author as Rapporteur for the Fourth 
Meeting of the Round Table of Experts on International Humanitarian Law Applicable to Armed Conflicts 
at Sea under the Madrid Plan of Action. The Round Table is sponsored by the International Institute of 
Humanitarian Law, San Reno, Italy, to whom the author is grateful for encouraging its publication. The paper 
was prepared while the author was occupying the Charles H. Stockton Chair of International Law at the U.S. 
Naval War College in 1991-1992. The author wishes to express thanks to the Naval War College for making 
available the time and research resources necessary for completion of the paper during his tenure at the War 
College. The views expressed herein are personal to the author and do not necessarily reflect those of the 
United States Government or the U.S. Naval War College. 

2. U.N. Document A/CONF.62/122, opened for signature at Montego Bay, Jamaica, 10 December 
1982, reprinted in The Law of the Sea: Official Text of the United Nations Convention on the Law of the Sea with 
Annexes and Index (1983), Sales No. E.83.V.5 (cited hereinafter as LOS Convention). 

3. The Convention will enter into force one year after the deposit of the 60th ratification or accession. 
LOS Convention, supra n. 2, article 308. As of the time of the writing of this paper (June 1992), there were 
51 ratifications. 

4. Statement by U.S. President, 10 March 1983, Weekly Compilation of Presidential Documents, v. 19, 
No. 10, at 383 (14 March 1983). 

5. American Law Institute, 2 RESTATEMENT (THIRD) OF THE LAW: THE FOREIGN RELATIONS 
LAW OF THE UNITED STATES 5 (1987), (cited hereinafter as Restatement (Third)). 

6. The term "zone" as used in this paper does not include wartime exclusion zones such as those 
proclaimed by Germany in World Wars I and II or by Great Britain in the Falkland Islands War. A discussion 
of such "war" zones is beyond the scope of this paper. 

7. William L. Schachte, Jr., U.S. Department of Defense Representative for Ocean Policy Affairs, "The 
Value of the 1982 UN Convention on the Law of the Sea — Preserving our Freedoms and Protecting the 
Environment," (Address to the 25th Annual Conference of the Law of the Sea Institute, Malmo, Sweden, 
August 1991), reprinted in Special Report of the Council on Ocean Law under the same tide. 

8. Oxman, The Regime of Warships Under the United Nations Convention on the Law of the Sea, 24 Va. J. 
Int'l L. 809, 811 (1984) (cited hereinafter as Oxman). 

9. See, e.g., Janis, Neutrality, in ROBERTSON, 64 U.S. NAVAL WAR COLLEGE INTERNATIONAL 
LAW STUDIES, THE LAW OF NAVAL OPERATIONS 148 (1991), Lowe, The Commander's Handbook on the 
Law of Naval Operations and the Contemporary Law of the Sea, id. at 109. 

10. Greenwood, 77ie Concept of War in Modem International Law, 36 Int'l & Comp. L. 283, 300 (1987). 

1 1 . Perhaps the most complete and well-balanced history of the development of the law of the sea written 
in English (until its publication in 1911) is FULTON'S THE SOVEREIGNTY OF THE SEA (1911). Although 
subtided, "An Historical Account of the Claims of England to the Dominion of the British Seas, etc., . . ." the 



Robertson 305 

book nevertheless deals extensively with claims of other States to areas of exclusive jurisdiction as well as the 
counter-assertions of those States which opposed such claims of exclusive jurisdiction or sovereignty. I have 
relied extensively on this book in developing the following summary. Where important for identifying the 
specific source of a statement, I have cited to the particular pages of the book from which the statement was 
taken; where only general propositions are stated, I have not attempted to identify the precise source. (THE 
SOVEREIGNTY OF THE SEA is cited hereinafter as FULTON). A second exhaustive and more modern history 
may be found in S WARZTRAUBER, THE THREE MILE LIMIT OF TERRITORIAL SEAS: A BRIEF HISTORY 
(1972). 

12. See JESSUP, THE LAW OF TERRITORIAL WATERS AND MARITIME JURISDICTION 3 (1927), 
(hereinafter cited as JESSUP). 

13. Id., n. 3. 

14. FULTON, supra n. 11, at 3. Fulton points out that these claims were generally recognized by other 
States because the right to levy tribute was accompanied by the obligation to protect commerce in these closed 
seas from pirates and other predators who swarmed over the oceans during this period. Id. at 6-7. 

15. COLOMBOS, THE INTERNATIONAL LAW OF THE SEA 49 (7th ed. 1967). 

16. Id. 

17. FULTON, supra note 11, at 338; see also id., at 105-108. 

18. GROTIUS, MARE LIBERUM (The Freedom of the Seas), (Magoffin trans. 1916). 

19. GROTIUS, DE JURE BELLI AC PACIS (The Law of War and Peace), (Kelsey trans. 1925). 

20. The debates between Grotius on the one hand and Welwood and Selden on the other, as well as 
summaries of other significant writings on the subject in the era, are detailed in FULTON, supra n. 11, at 338 ff. 
The most influential of the books opposing the ideas of Mare Liberum was Selden's two-volume MARE 
CLAUSUM, which was apparently completed in 1618 but was not published until 1635. Id. at 366-367. 

21 . Until the twentieth century the term most frequently used to describe the territorial sea was "territorial 
waters." In the 1930 League of Nations Conference on the Codification of International Law, the question of 
terminology — "territorial waters" or "territorial sea" — was a subject of debate. The Conference decided to use 
the term "territorial sea" on the ground that it was more precise, since the term "territorial waters" was 
sometimes used to include both the territorial sea and internal waters. See League of Nations, Acts of the Conference 
for the Codification of International Law [1930], v. III., 202, reprinted in ROSENNE, 4 LEAGUE OF NATIONS 

CONFERENCE FOR THE CODIFICATION OF INTERNATIONAL LAW 1404 (1975), (cited hereinafter as 
Acts of the Conference, ROSENNE). Although the terms "territorial sea" and "territorial waters" continued 
to be used interchangeably in the literature and international fora, the International Law Commission settled 
on the term "territorial sea" for its draft Convention. See Report of the International Law Commission covering 
the work of its fourth session, II 1952 YEARBOOK OF THE INTERNATIONAL LAW COMMISSION, 68. 
The same term was used in the 1958 and 1982 Conventions. 

22. FULTON, supra n. 11, at 549. 

23. FULTON, supra n. 11, at 557-558. 

24. Id. 

25. Id. at 558. 

26. Id. at 558. 

27. Id. at 554-555. 

28. FULTON, supra n. 1 1, Section II, Chapter 2, passim; O'CONNELL, 1 THE INTERNATIONAL LAW 
OF THE SEA 128-129 (1982), (cited hereinafter as O'CONNELL). With respect to the breadth of the territorial 
sea I say "generally" rather than "universally" adopted because even at its most general acceptance, the 
three-nautical-mile territorial sea was never universal. The Scandinavian States claimed territorial seas of four 
nautical miles (their marine league being four rather than three nautical miles), and a number of States clung 
to their six-mile claims, with a few making claims to more extensive breadths, usually twelve miles. 

29. See, for example, O'CONNELL, supra n. 28, at 152. 

30. Supra n. 12, at 7. 

31. O'CONNELL, supra n. 28, v. 1, 72. 

32. See Acts of the Conference, v. Ill, pp. 179 and 202, ROSENNE, supra n. 21, v. 4, 1381 and 1404. 

33. Report of the International Law Commission covering the work of its eighth session, 23 April-4 July 
1956, UN Doc. A/3159, II YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 1956, 256 "Law 
of the Sea," article 1. 

34. Convention on the Territorial Sea and Contiguous Zone, 29 April 1958, UN Treaty Series, v. 516, 
article 1 (cited hereinafter as the Territorial Sea Convention). 

35. LOS Convention, supra n. 2, article 2, para. 1. 

36. Jessup says that, "As a general principle, the right of innocent passage requires no supporting argument 
or citation of authority; it is firmly established in international law." JESSUP, supra n. 12, at 120. 

37. See infra nn.77-79 and accompanying text. 

38. Supra n. 12, at 77. 



306 Readings on International Law 

39. Church v. Hubbart, 2 Cranch 187, 1 L. Ed. 249 (1804), and other cases cited in JESSUP, supra n. 12, 
at 80. 

40. Supra n. 12, at 88-92. 

41. Id. at 91. 

42. For a detailed discussion of the controversies surrounding the United States Prohibition-Era "hovering 
acts," see JESSUP, supra n. 12, at 241-258. 

43. Territorial Sea, Covenrion, supra n. 34, Article 24. 

44. See FULTON, supra n. 1 1, Chapter V passim; JESSUP, supra n. 12, passim; O'CONNELL, supra n. 28, 
at 155. 

45. Supra n. 12, at 20; FULTON, supra n. 1 1, Chapter V, passim. 

46. FULTON, supra n. 11, at 694. See also FULTON, Chapter V, passim. 

47. Presidential Proclamation 2667, "Policy of the United States with Respect to the Natural Resources 
of the Subsoil and Sea Bed of the Continental Shelf," 28 September 1945, 10 U.S. Federal Register, at 12303, 
U.S. Code of Federal Regulations, 1943-1948 Comp., v. 3, at 67 (1945), reprinted in 4 WHITEMAN, DIGEST 
OF INTERNATIONAL LAW 756-757 (1965) (hereinafter cited as WHITEMAN). 

48. White House Press Release of 30 September 1945, reprinted in U.S. Department of State Bulletin, 
v. XIII, No. 327, pp. 484-485 (1945), reproduced in WHITEMAN, supra n. 47, at 757-758. 

49. Report of the International Law Commission covering the work of its eighth session, 23 April-4 July 
1956, supra n. 33, at 256. 

50. Territorial Sea Convention, supra n. 34. 

51. Res. 1307 (XIII) (10 December 1958). 

52. See WHITEMAN, supra n. 47, at 119-137. 

53. See discussion in text supra, at nn. 38-43. 

54. II YEARBOOK OF THE INTERNATIONAL LAW COMMISSION (1956), supra n. 33, at 294-295 
(emphasis supplied). 

55. Id. 

56. Convention on the Continental Shelf, 29 April 1958, UN Treaty Series, v. 499, at 31 1, U.S.T., v. 15, 
at 471, U.S. T.I.A.S. No. 5578, Article 2. 

57. Id., article 1. 

58. Fisheries Case (United Kingdom v. Norway), 1951 I.C.J. Reports 116 (Merits). 

59. See examples discussed in Reisman, Straight Baselines in International Law: A Call for Reconsideration, 
Proceedings of the 82nd Annual Meeting (1988) of the American Society of International Law at 260 (1990), see also, 
Office of Ocean Affairs, U.S. Department of State, Limits in the Seas No. 1 12: United States Responses to Excessive 
National Maritime Claims (12 March 1992). 

60. Restatement (Third), supra n. 5. This opinion is also reflected in the joint statement of the U.S. and 
U.S.S.R. governments at the 1989 Jackson Hole Summit Conference which included the statement that the 
two governments were guided by the provisions of the 1982 Convention "which, with respect to traditional 
uses of the oceans, generally constitute international law and practice and balance fairly the interests of all 
States." U.S. Department of State, Department of State Bulletin, v. 89, 25-26 Pecember 1989). 

61 . U.S. Department of the Navy, Office of the Chief of Naval Operations, Law of Naval Warfare (NWIP 
10-2) (Washington: U.S. Government Printing Office, 1955), section 430a. (NWIP 10-2 is the predecessor 
manual to NWP-9 and is hereinafter cited as NWIP 10-2). I state "as a general rule" because, under certain 
circumstances, when a neutral State does not live up to its obligation to prevent hostile acts within its maritime 
territory by one belligerent, the opposing belligerent who is harmed by such acts may take armed self-help 
measures. O'CONNELL, supra n. 28, at 1 1 17; LAUTERPACHT, OPPENHEIM'S INTERNATIONAL LAW 695 
(7th ed. 1952), (hereinafter cited as LAUTERPACHT); U.S. Department of the Navy, Office of the Chief of 
Naval Operations, 77ie Commander's Handbook on the Law of Naval Operations para. 7.3.4.2 (NWP-9 (Rev. A)) 
(1989), (hereinafter cited as NWP-9). 

62. LAUTERPACHT, supra n. 61, 673; WHITEMAN, supra n. 47, at 178 and sources cited therein. The 
principle is codified in article 9 of Convention (XIII) Concerning the Rights and Duties of Neutral Powers 
in Naval War, 18 October 1907, 36 Stat. 2415 (U.S.), 100 British & Foreign State Papers (1906-1907), 448-454 
(U.K.), reprinted at 2 Am. J. Int'l L. 202 (Supp.), (cited hereinafter as Hague XIII). 

63. Hague XIII, supra n. 62. 

64. Schindler, Commentary [on Hague Convention XIII], in RONZITTI, THE LAW OF NAVAL 
WARFARE: A COLLECTION OF AGREEMENTS AND DOCUMENTS WITH COMMENTARIES 21 1 , at 21 5, 
221 (1988). 

65. Although Hague XIII does not include the words, "in its territorial waters," State practice suggests 
that this was the meaning intended by the Article. See LAUTERPACHT, supra n. 61, 746 and sources cited 
therein; TUCKER, 50 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES, THE LAW OF WAR 
AND NEUTRALITY AT SEA 219 note 52 (1957), (cited hereinafter as TUCKER). 



Robertson 307 

66. It is a disputed point as to whether this article applies only to stays in ports, roadsteads or territorial 
waters or also to mere passage through the territorial sea which lasts more than twenty-four hours. The AUmark 
incident, which will be discussed infra n. 75, is illustrative of how this issue might arise. 

67. It is a disputed point as to whether a neutral State may allow a warship to repair battle damage in a 
neutral port. See SMITH, THE LAW AND CUSTOM OF THE SEA 154 (2d ed. 1950) (SMITH); COLOMBOS, 
supra n. 15, at 654-657. In any event, it is settled law that repairs which increase the fighting strength of the 
damaged warship are not permitted. See Harvard Research in International Law, Draft Convention on Rights 
and Duties of Neutral States in Naval and Aerial War, Comment on Articles 32-36, 33 Am. J. Int'l L. 169, 463 
(1939). 

68. LOS Convention, supra n. 2, article 8, para. 3. 

69. RAUCH, THE PROTOCOL ADDITIONAL TO THE GENEVA CONVENTIONS FOR THE PROTEC- 
TION of Victims of international armed conflicts and the United Nations conven- 
tion ON THE LAW OF THE SEA: REPERCUSSIONS ON THE LAW OF NAVAL WARFARE 32, (1984), 
citing Hague XIII, NWIP 10-2, supra n. 61, and the Soviet Naval International Law Manual (Moscow: 1966). 
Both of these manuals, of course, were published prior to the codification of the twelve-mile limit in the UN 
Law of the Sea Convention. (Dr. Rauch's monograph is cited hereinafter as Rauch.) 

70. NWP 9, supra n. 61, para. 7.3.4.2. 

71. Canadian Forces, Law of Armed Conflict Manual (Second Draft) (Ottawa: undated), para. 1509 
(hereinafter cited as Canadian Manual). It should be noted that as an interim measure until its draft manual is 
completed, the Canadian Armed Forces have promulgated MAOP-331, Handbook on the Law of Naval 
Operations, which, with a 16-page Canadian introduction, incorporates NWP 9 as Annex A. 

72. German Federal Ministry of Defense, Humanitarian Law in Armed Conflicts — Manual para. 1119(1 992) , 
(hereinafter cited as German Manual). 

73. Hague XIII, supra n. 62, article 3 (release a prize captured within neutral's waters), article 8 (prevent 
fitting out or arming of warships), article 25 (exercise surveillance to prevent violation of neutrality). 

74. See authorities cited in n. 61 supra; see also WHITEMAN, supra n. 47, 190 ft", and sources cited therein. 

75. For a detailed examination of the Altmark incident, see MACCHESNEY, U.S. NAVAL WAR 
COLLEGE, INTERNATIONAL LAW SITUATIONS AND DOCUMENTS, 1956, SITUATION, DOCUMENTS, 
AND COMMENTARY ON RECENT DEVELOPMENTS IN THE INTERNATIONAL LAW OF THE SEA 3 
(1957), (hereinafter cited as MACCHESNEY). A revised version is printed in MacChesney, The Altmark Incident 
and Modem Warfare — 'Innocent Passage' in Wartime and the Right of Belligerents to Use Force to Redress Neutrality 
Violations, 52 Nw. U.L. Rev., 320 (July-August 1957). See also, C.H.M. Waldock, The Release of the Altmark 
Prisoners, 24 Brit. Y.B. Int'l L. 216 (1947). 

76. See CHURCHILL, THE GATHERING STORM 531-532; (1948), see also H. A. Smith, supra n.67 at 
153. 

77. Some States continue to assert that innocent passage of warships is subject to advance notification or 
consent. During UNCLOS III, a number of States introduced amendments to the draft Convention seeking 
to make this an explicit requirement. Opponents pointed out that adoption of such a requirement would be a 
"conference-breaker." The matter was finally resolved when the President of the Conference persuaded the 
proponents of the amendments to withdraw them in conjunction with his entering into the records of the 
Conference a statement that "their decision is without prejudice to the rights of coastal States to adopt measures 
to safeguard their security interests, in accordance with articles 19 and 25 of the draft Convention." United 
Nations, Third United Nations Conference on the Law of the Sea: Official Records (New York: United Nations, 
1984), v. XVI, 132, para. 1 (cited hereinafter as UNCLOS OR). A number of States made statements at their 
signing or ratification of the Convention that the terms of the Convention are without prejudice to their right 
to adopt measures regulating the passage of warships through their territorial seas. These States included Cape 
Verde, Democratic Yemen, Egypt, Finland, Iran, Oman, Romania, Sao Tome and Principe, Sudan, Sweden, 
and Yemen. See Multilateral Treaties Deposited with the Secretary-General, ch. XXI. 6 (ST/LEG/SER.E/8, 
pp. 780-794). Several States made statements asserting that warships were entitled to exercise the right of 
innocent passage without notifying or obtaining the authorization of the coastal State. See statements in the 
exercise of the right of reply by France, Italy, United Kingdom, and the United States, UNCLOS III OR, 
supra, v. XVII, 241-244. 

78. Hague XIII, supra n. 58, Article 10. MacChesney's examination of the meaning of "mere passage" 
provides the following insights: "The British who introduced the phrase in their draft of [Article 10] indicated 
that innocent passage in the peacetime sense was what they had in mind. . . . [T]he peacetime analogy serves 
to indicate the type of passage that belligerents were willing to allow neutrals to grant. The type of passage 
contemplated is limited by two basic criteria. It must be an innocent passage for bona fide purposes of navigation 
rather than for escape or asylum. The passage must be innocent in the sense that it does not prejudice either 
the security interests of the coastal State, or the interests of the opposing belligerent in preventing passage 
beyond the type agreed to in Article X." MACCHESNEY, supra n. 75, 18-19. 



308 Readings on International Law 

79. SMITH, supra n. 67, 153; TUCKER, supra n. 65, 232; NWIP 10-2, supra note 61, section 443a, note 
28; NWP 9, supra n. 61, para. 7.3.4.1. Canada's draft manual does not appear to recognize the right of neutral 
States to close their territorial seas to the passage of belligerent warships. Canadian Manual, supra n. 71, para. 
1511(3). The German Manual is ambiguous. In paragraph 1130 of the revised draft (August 1991) it states, 
"The innocent passage through neutral territorial waters of warships belonging to the parties to the conflict 
shall be permissible" (citing Hague XIII, Article 10), but in paragraph 1 133 it states, "It is within the discretion 
of a neutral state to allow the passage of warships and prizes through neutral territorial waters" (also citing 
Hague XIII, Article 10). German Manual, supra n. 72, pars. 1130 and 1133. 

80. Reisman and Lietzau, Moving International Law from Theory to Practice: The Role of Military Manuals in 
Effectuating the Law of Armed Conflict, in ROBERTSON, supra n. 9, 1, 7. 

81 . See authorities cited in n. 79 supra. See also RAUCH, supra n. 69, at 40-44. Rauch states that although 
the 1907 Hague Conference took up the issue of wartime passage through neutral straits, it did not include an 
article in Hague XIII on the subject. But he also states that near uniform practice since that time justifies the 
conclusion that "if the littoral States are neutral, innocent passage of belligerent warships through international 
straits in time of war may be interfered with only in exceptional cases." Id., at 44. 

82. United Kingdom v. Albania (Corfu Channel Case): MERITS, JUDGMENT, 1949 I.C.J. Reports, 4. 

83. Mat 28. 

84. Territorial Sea Convention, supra n. 34, Article 16, para. 4. 

85. See authorities cited in Robertson, Jr., Passage Through Straits: A Right Preserved in the Third United 
Nations Conference on the Law of the Sea, 20 Va. J. Int'l L. 801, 803, n. 7. 

86. Note that straits joining the high seas or an EEZ with the territorial sea of a foreign State are excluded 
by omission, although they were grouped with other straits used for international navigation in the 1958 
Territorial Sea Convention. Compare LOS Convention, supra n. 2, article 37, with the Territorial Sea 
Convention, supra n. 34, article 16, para. 4. The right of nonsuspendable innocent passage for such straits is 
preserved by article 45, para. 2(b) of the LOS Convention, however. 

87. LOS Convention, supra n. 2, article 35(c). 

88. Id., article 36. 

89. Id., article 38, para. 1. 

90. Although there is no explicit provision of the Convention so stating, the result follows from the fact 
that this category of straits is not included within either those governed by the regime of transit passage or those 
governed by article 45 (nonsuspendable innocent passage). 

91. LOS Convention, supra n. 2, Article 45, para. 1(a). The most significant effect of the non-applicability 
of transit passage to this category of straits is that it closes them to overflight by aircraft, and submarines must 
navigate on the surface and show their flag. Of course, if the passage seaward of the island is truly "of similar 
convenience with respect to navigational and hydrographical characteristics," the requirement to use such an 
alternate passage rather than the strait is of little operational significance. 

92. LOS Convention, supra n. 2, article 38, para. 2 (emphasis supplied). 

93. Id., article 38, para. 1(c). 

94. Civil aircraft are required to observe the rules; State aircraft, which are not bound by the ICAO rules, 
"will normally comply with such safety measures and will at all times operate with due regard for the safety of 
navigation." LOS Convention, supra n. 2, article 39, para. 3(a). 

95. Id., article 42, para. 1. 

96. Id., article 42, para. 2. 

97. Id., article 42, para. 5. See also, statement of U.K. representative explaining the meaning of the 
proposal introduced by his delegation which eventually became article 42. UNCLOS III OR, supra n. 77, 
v. II, Second Committee, 11th Meeting, p. 125, para. 23. See also, LOS Convention, supra n. 2, article 304. 

98. See Moore, The Regime of Straits and the Third United Nations Conference on the Law of the Sea, Am. J. 
Int'l L. 74, 77, 95 (1980); Burke, Submerged Passage through Straits: Interpretations of the Proposed Law of the Sea 
Treaty Text, 52 Wash. L. Rev. 193 (1977); Robertson, supra n. 85, at 843-846. 

99. RAUCH, supra n. 69, at 45-46 (footnotes omitted). 

100. NWP 9, supra n. 61, para. 7.3.5. 

101. Canadian Manual, supra n. 71, para. 1511 (2). A footnote to the paragraph identifies those straits to 
which the right of transit applies, following the criteria laid down in Part III of the LOS Convention. 

102. See n. 79 supra. 

103. LOS Convention, supra n. 2, article 35(c) (emphasis supplied). 

104. See Convention regarding the Regime of the Straits, Montreux, 20 July 1936, League of Nations 
Treaty Series, v. 173, p. 213, reprinted in 31 Am. J. Int'l L. 1 (Supp. 1937). 

105. See Boundary Treaty between the Argentine Republic and Chile, 23 July 1881, 159 Consolidated 
Treaty Series (Parry), 45. Article 5 thereof provides, in English translation, "Magellan's Straits are neutralized 
forever, and free navigation is guaranteed to the flags of all nations." In the Argentina-Chile Treaty of Peace 
and Friendship of 1984, the two countries reaffirmed that the Straits of Magellan "are perpetually neutralized 



Robertson 309 

and freedom of navigation is assured to ships of all flags," 29 November 1984, English translation reprinted in 
24I.L.M. 11 (1985). 

106. See Treaty for the Redemption of the Sound Dues between Denmark and a number of other 
European States, 14 March 1857, reprinted in English in 116 Consolidated Treaty Series (Parry), 357. The 
United States concluded a separate bilateral treaty with Denmark discontinuing Sound Dues for ships flying 
the U.S. flag. Convention for the Discontinuance of the Sound Dues, 11 April 1857, U.S. Statutes at Large, 
v. 11, 719, reprinted in English in Parry, v. 116, 465. It should be noted that the ICJ is currendy seised of a 
case concerning navigation through the Belts. 

107. See Convention Relating to the Non-Fortification and Neutralization of the Aaland Islands, 20 
October 1921, League of Nations Treaty Series, v. 9, 213, reprinted in 17 Am. J. IntT L. 1 (1923). 

108. RAUCH, supra n. 69, at 53. the two authorities cited in opposition are Moore in 77ie Regime of Straits 
and the Third United Nations Conference on the Law of the Sea, supra, n. 98 at 1 1 1, and Barabolja in MODERNES 
SEEVOLKERRECHT, 230 published by the Academy of Science of the USSR, translated into German by 
Rauch, 1, (1978). Professor Moore was Vice Chairman of the U.S. delegation to UNCLOS III; General 
Barabolja was a senior member of the Soviet delegation. 

109. NWP 9, supra n. 61, para. 7.3.5. 

110. Montreux Convention, supra n. 104, articles 19 and 20; see also, RAUCH, supra n. 69, at 51. 

111. See text supra nn. 53-55. 

112. Territorial Sea Convention, supra n. 34, article 24; LOS Convention, supra n. 2, article 33. 

113. See text, supra at nn. 54 and 55. 

114. Supra at n. 46. 

115. RAUCH, supra 69, 33. 

116. LOS Convention, supra n. 21, article 56. 

117. See Oxman, supra n. 8, at 848; see also Robertson, Navigation in the Exclusive Economic Zone, 24 Va. 
J. Int'l L. at 874-875, and note 52. 

118. For a full discussion of this issue, which has been frequently debated in the legal literature, see 
K WIATKO WSKA, THE 200 MILE EXCLUSIVE ECONOMIC ZONE IN THE NEW LAW OF THE SEA 230-235 
(1989), (cited hereinafter as KWIATKOWSKA). 

119. Richardson, Power, Mobility and the Law of the Sea, Foreign Affairs, 902 at 916 (Spring 1980). 

120. Professor Oxman concludes that the addition of the phrase, "other internationally lawful uses, 
etc. ..." is the "functional substitute for the 'inter alia' in article 87." Oxman, supra n. 8, at 837. 

121. Id. at 837-838. 

122. See Oxman, supra n. 8. 

123. RAUCH, supra n. 69, at 34, quoting from 70 SVERIGES FLOTTA, 8-1 1 (1974). 

124. See, for example, UNCLOS III OR, supra n. 77, v. XVII, at 54, para. 224. 

125. RAUCH, supra n. 69, 36. 

126. Id. at 37. 

127. Id., quoting from SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES, THE 
CONFERENCE OF 1907 288-290 (1920), I. Report of the Third Commission to the Conference, meeting of 
9 October 1907 (Annexes). 

128 Id. at 38. 

129. Statement of the delegate of Brazil, Plenary, 187th Meeting, 7 December 1982, UNCLOS III OR, 
supra n. 77, v. XVII, at 40, para. 28. 

130. Statement of the representative of Cape Verde, 188th Meeting, Plenary, UNCLOS III OR, supra n. 
77, v. XVII, at 62, para. 124. 

131. Statement of the representative of Uruguay, 192nd Meeting, Plenary, UNCLOS III OR, supra n. 
77, v. XVII, at 120, para. 55. 

132. Italy, Statement made in the exercise of the right of reply, 7 March 1983, UNCLOS III OR, supra 
n. 77, v. XVII, at 241-242; France, Statement made in the exercise of the right of reply, 12 May 1983, id., 
at 241; United States of America, Statement made in the exercise of the right of reply, 8 March 1983, id., 
at 243-244. 

133. Koh, in JON M. VAN DYKE, CONSENSUS AND CONFRONTATION: THE UNITED STATES AND 
THE LAW OF THE SEA CONVENTION 304 (A Workshop of the Law of the Sea Institute, Honolulu, Hawaii, 
January 9-13, 1984) (1985). 

134. See KWIATKOWSKA, supra n. 118, at 211. 

135. See KWIATKOWSKA, id., n. 118, at 203. 

136. Canadian Manual, supra n. 71, para. 703. 

137. German Manual, supra n. 72, para. 1011. The German Manual adds a cautionary note that, "The 
rights of coastal and archipelagic states must, however, be taken into due consideration." Id. A similar cautionary 
statement is carried in a footnote in the Canadian Manual. Supra n. 71, para. 703, n. 1. 

138. NWP 9, supra n. 61, para. 7.3. 



310 Readings on International Law 

139. LOS Convention, supra n. 2, article 56, para. 3. 

140. LOS Convention, supra n. 2, article 76. 

141. Id., article 77. 

142. Id., article 80. 

143. Id., article 78. 

144. Id., article 60(6). 

145. Id., article 80 (incorporating article 60 mutatis mutandis). 

146. Convention on the Continental Shelf, 29 April 1958, U.N. Treaty Series, v. 499, 311, article 2. 

147. LOS Convention, supra n. 2, article 77. 

148. See Tullio Treves, Military Installations, Structures, and Devices on the Seabed, 74 Am. J. Int'l L. 808, at 
834 (cited hereinafter as Treves). 

149. See id. at 839 

150. Id. at 840-846. 

151. An alternative argument legitimizing the employment of weapons or other military devices on the 
seabed of the EEZ and continental shelf could be made on the basis that military devices, such as mines and 
detection or surveillance devices are not "installations or structures." Some weight is added to this argument 
by the replacement of the nomenclature "installations and devices" in the 1958 Continental Shelf Convention, 
supra n. 146, article 5, by "installations and structures" in the 1982 Convention. See Treves, supra n. 148, 
p. 841. A second alternative basis for the same conclusion, at least for detection and surveillance devices, can 
be found in the explicit provisions in articles 58 and 79 recognizing the right of all States to lay and maintain 
submarine cables. Id. at 842-843. 

152. Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, (5 
August 1963). 480 U.N. Treaty Series 43. 

153. Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass 
Destruction on the Seabed and the Ocean Floor and in the Subsoil Thereof, 11 February 1971, U.N. Treaty 
Series, v. 955, p. 115. 

154. Treaty for the Prohibition of Nuclear Weapons in Latin America, with Additional Protocols I and 
II, (14 February 1967) 634 U.N. Treaty Series 281. 

155. U.S. Department of Defense, Office of the Assistant Secretary of Defense (International Security 
Affairs), MARITIME CLAIMS REFERENCE MANUAL (Washington: U.S. Dept. of Defense, 1989), v. 2, at 232 
(for sale by the National Technical Information Service as DoD 2005. 1 -M). Although Indonesia is the paradigm 
case of an archipelagic State, the archipelagic waters claimed by a number of other States enclose ocean areas 
of substantial dimensions. Examples include (with their approximate North-South and East-West dimensions 
in nautical miles): Cape Verde (144 x 130), Fiji (300 x 300), Papua-New Guinea (840 x 600), Solomons (500 
x 120), Vanuatu (420 x 100). Ibid., passim. The Republic of the Philippines is not included in this list because 
its archipelagic baselines, which are drawn in a manner inconsistent with the LOS Convention, are not generally 
recognized as valid. 

156. RAUCH, supra n. 69, at 33. 

157. NWP 9, supra n. 61, para. 7.3.6. The Annotated version of NWP-9 footnotes this statement to Hague 
XIII, articles 1, 2 and 5, and NWIP 10-2, para. 441, both of which address neutral waters in the context of 
the territorial sea and internal waters only. 

158. Canadian Manual, supra n. 71, para. 1509. 

159. Id., para. 703. See also para. 706, entided "Passage Through Neutral Waters," which provides in part 
that, "Neutral waters are the internal waters and the territorial seas, including straits overlapped by such waters, 
of states which are not participants in a conflict." 

160. Telephone conversation between the author and Commander William Fenrick of the Canadian 
Ministry of Defense on 4 February 1992. 

161. German Manual, supra n. 72, para. 1010 (emphasis supplied). 

162. See, for example, id., paras. 1121-1123, 1130-1133. It should be noted, however, that paragraph 
1012 of the German Manual states that archipelagic States exercise full sovereignty within their archipelagic 
waters, adding that, with respect to acts of naval warfare, "The rights of . . . archipelagic states must ... be 
taken into due consideration." 

163. See text at nn. 73-79 supra. 

164. See supra, nn. 75 and 76 and accompanying text. 

165. Hague XIII, supra n. 62, article 13. 

166. Id., article 25. The Canadian draft manual recognizes the difficulty posed for the neutral, stating, 
"There is a significant possibility that weak neutral archipelagic states will be unable to ensure that strong 
belligerents will not use their archipelagic waters as a base of operations. HMC ships should not, however, 
presume that enemy warships present in neutral archipelagic waters are using those waters as a base of operations 
and are hence subject to attack unless the enemy warships pose an immediate and substantial threat or unless 



Robertson 311 

guidance on the subject has been received from a higher command." Canadian Manual, supra n. 71, para. 
706(6). 

167. See supra, nn.77-79 and accompanying text for discussion of the neutral's rights in this regard. 

168. NWP 9, supra n. 61, para. 7.3.6. 

169. LOS Convention, supra n. 2, article 44, as incorporated mutatis mutandis into the archipelagic-State 
Part of the Convention by article 54. 

170. Id., article 53, para. 4. 

171. Id., para. 12. 

172. Some publicists have tried to draw a distinction between the two concepts on the basis that in Part 
III (straits), the term "freedom of navigation and overflight" is used (article 38, para. 2), whereas in Part IV 
(archipelagic States), the expression "right of archipelagic sea lanes passage" is used (article 53, para. 2). See, for 
example, Wisnumurti, Archipelagic Waters and Archipelagic Sea Lanes, in VAN DYKE, ALEXANDER, 8c 
MORGAN, INTERNATIONAL NAVIGATION: ROCKS AND SHOALS AHEAD? 198, 204-205. (1988). In 
view of the near identity of the provisions in the other articles of the two Parts as well as incorporation of key 
provisions of the transit passage regime by reference mutatis mutandis into Part IV (article 54), it is difficult to 
conclude that this difference in terms has any legal significance. 

173. LOS Convention, supra n. 2, article 53, para. 3. 

174. Id., article 54. 

175. NWP 9, supra n. 61, para. 7.3.6. 

176. Canadian Manual, supra n. 71, para. 1511(2). 

177. NWP 9, supra n. 61, para. 7.3.5. 

178. There are, of course, exceptions such as the Singapore-Malacca Strait 

179. The Singapore-Malacca Strait is an exception here also. 

180. Rear Admiral Bruce A. Harlow, JAGC, USN, The Law of Neutrality at Sea for the 80's and Beyond, A 
Paper Prepared for the Hawaii Regional Meeting of the American Society of International Law, 16-18 February 
1983, reproduced in 3 UCLA Pacific Basin Law Review, 42 at 53-54. Although Admiral Harlow uses the 
term "neutral waters" in the quoted paragraph, he is referring throughout to archipelagic waters. Despite his 
reservations and uncertainties about treating archipelagic waters the same as the territorial sea, Admiral Harlow 
seems to come down in favor of that solution as more consistent with the expectations of neutral archipelagic 
States and the opportunity for the progressive development of international law applicable to armed conflict 
provided that a belligerent's right to self-help is recognized in the event the neutral archipelagic State is unwilling 
or unable to enforce the neutrality of its archipelagic waters. 

181. In response to comments on his paper, Archipelagic Waters and Archipelagic Sea Lanes, supra n. 172, Dr. 
Wisnumurti, who was the Director of Legal and Treaty Affairs of the Indonesian Department of Foreign Affairs, 
posed a hypothetical situation which appeared to assume that archipelagic sea lanes would be open to belligerent 
warships in rime of armed hostilities. It would be presumptuous, however, to interpret such an informal remark 
as an expression of the government of Indonesia's position on this issue. 

182. LOS Convention, supra n. 2, article 1(1). 

183. Id., article 135. 

184. Restatement (Third), supra n. 5, section 523, Reporters' Notes, para. 1. 

185. See interim mining laws enacted by France, Germany, Japan, the former U.S.S.R., and the United 
Kingdom reprinted in 21 I.L.M. 808 (1982), v. 20, at 393 (1981), v. 22, at 102 (1983), v. 21, at 551 (1982), 
and v. 20, at 1717 (1981) respectively. The United States act is at Tide 30, United States Code, sections 1401 
et seq. 

186. LOS Convention, supra n. 2, article 137, para. 1. Restatement (Third), supra n. 60, section 523, para. 

(!)(»)■ 

187. LOS Convention, supra n. 2, article 87, para. 2 (emphasis supplied). 

188. 18 October 1907, 37 U.S. Statutes at Urge, at 2332, Bevans, v. 1, at 699. Although the Convention, 
by its own terms, covers only "automatic contact mines," it seems to be generally accepted that the principles 
stated therein are applicable mutatis mutandis to other forms of naval mines developed since Hague VIII was 
adopted in 1907. See, e.g., TUCKER, supra n. 65, at 304, note 49; RAUCH, supra n. 69, at 1 16; NWP 9, supra 
n. 61, para. 9.2.1; Canadian Manual, supra n. 71, para. 710. 

189. LEVIE, MINE WARFARE AT SEA (1992) (cited hereinafter as LEVIE). 

190. Id., 36. 

191. Id., 37-42. 

192. Sir Ernest Satow, Proceedings of the Conference, v. 1, at 274-275, as quoted in Levie, supra n. 189, 
p. 41. Sir Ernest added that Great Britain regarded the Convention as only a partial codification of the law of 
mine warfare and that it would not "be permissible to presume the legitimacy of an action for the mere reason 
that this Convention has not prohibited it." Id., at 41-42. Great Britain filed a reservation to the same effect. 
See SCHINDLER & TOMAN, THE LAWS OF ARMED CONFLICTS: A COLLECTION OF CONVENTIONS, 
RESOLUTIONS AND OTHER DOCUMENTS 808 (3rd ed. 1988). 



312 Readings on International Law 

193. LEVIE, supra n. 189, at 42-44. 

194. As quoted by LEVIE, id., at 44. 

195. LEVIE, supra n. 189, at 177. 

196. NWP 9 defines armed and controlled mines as follows: "Armed mines are either emplaced with all 
safety devices withdrawn or are armed following emplacement, so as to detonate when preset parameters (if 
any) are satisfied. Controlled mines (including mines possessing remote control activation devices) have no 
destructive capability until affirmatively activated by some form of controlled arming order (whereupon they 
become armed mines)." NWP 9, supra n. 61, para. 9.2.1. 

197. The annotated version of NWP 9 cites the Corfu Channel case, supra n. 82, for this proposition. 

198. Impliedly this includes neutral archipelagic waters. See NWP-9, supra n. 61, para. 7.3.6. 

199. Canadian Manual, supra n. 71, para. 710. 

200. Id., para. 703. 

201. Id., para. 1509. 

202. German Manual, supra n. 72, para. 1039. 

203. German Manual, supra n. 72, para. 1010. As previously noted, paragraph 1012 of the German Manual 
equates neutral or nonbelligerent EEZs with high seas insofar as acts of naval warfare are concerned. 

204. NWP 9, supra n. 61, para. 9.2.3, subpara. 6. Note that the German Draft Manual states that there is 
no right of protective mining of straits in times of crisis but is silent as to the mining of straits in armed conflict. 
German Manual, supra n. 72, para. 1041 (emphasis supplied). 

205. LEVIE, supra n.189 at 178. 

206. See Reisman and Lietzau, supra n. 80, as to the shaping of customary international law through 
publication of national manuals. 

207. The "other applicable rules" are those applicable to the conduct of hostilities regardless of where the 
hostile acts take place, such as rules regarding prohibitions on specific weapons or means of warfare, targeting, 
treatment of civilian persons and objects, etc. 

208. The prohibition against erecting any apparatus to communicate with belligerent forces at sea, 
contained in article 5 of Hague VIII, has not been included because it is deemed obsolete. 

209. Hague XIII uses the term "mere passage." I have used "innocent passage" as more consonant with 
modem usage and also because it is more clearly defined in international law. See n. 78 supra, where it is 
suggested that the two terms are legally equivalent. 

210. This provision adopts a position as to which practice is divided. See supra n. 67. 



PART THREE 



USE OF FORCE LAW 



Chapter 20 
Fighting by the Rules 5 



Commander Christopher Craig, D.S.C., Royal Navy 

HMS Alacrity, a type 21 general-purpose frigate, sailed from the United 
Kingdom on 5 April 1982 and accompanied the two carriers, HMS Hermes 
and HMS Invincible, throughout their passage south. We were subject to the first 
Argentine Mirage attack on 1 May, partook in the Total Exclusion Zone (TEZ) 
operations, were involved in a variety of naval gunfire support missions and 
clandestine operations, ran a number of night transport convoys into San Carlos 
water after the amphibious landing on 21 May, and had the dubious privilege of 
being present in the carrier battle group during each of the Exocet attacks. We 
departed the TEZ just before the fall of Port Stanley. Throughout this period I 
was, as Commanding Officer, privy to the evolution of the Rules of Engagement 
and quite naturally held a deep and vested interest in the rules — rules that were 
necessary to ensure our survivability, to police the TEZ effectively, and yet 
afforded us the necessary freedom to be militarily effective in pursuit of our aims. 

The Royal Navy's Use of Exclusion Zones. From the outset, we in the task force 
saw the United Kingdom's position as being rooted in a "self-defensive" posture 
under the UN Charter's Article 51. Everything we undertook — deploying the 
task force, establishing the Maritime Exclusion Zone (MEZ) and Total Exclusion 
Zone (TEZ), and effecting a landing — were predicated upon this basic assump- 
tion. I believe this has been our national standpoint throughout. 

The declaration of the MEZ on 7 April became effective on the 12th. At this 
stage we had a nuclear-powered attack submarine on station. This MEZ became 
the Total Exclusion Zone on 30 April. For it to be effective, it was necessary 
that our carrier air assets, our "police" force, should be within 200 nm of Port 
Stanley. We had, of course, given due notice to the world as early as 23 April 
that any approach by Argentine units which could amount to a threat to any of 
our forces would be dealt with appropriately; the scope of this warning was not 
restricted to the Exclusion Zone. 

This leads us to an emotive issue — the sinking of the Argentine cruiser General 
Belgrano. The clear perception of the Commander Task Group, Rear Adm. John 
Woodward, was that the Belgrano formed the southern arm of a three-pronged 

* Reprinted from the Naval War College Review May-June 1984. 



316 Readings on International Law 

surface attack force. This threat, coupled with the facts that the Belgrano was less 
than 12 hours steaming from the task force and that darkness was coming on, 
warranted her being attacked under the terms of the last warning. Her sinking, 
as you know, had a devastating deterrent impact upon the Argentine surface fleet. 
Subsequent action led to the loss of the Sheffield; after which we reiterated our 
intentions by warning Argentina that her surface and air units outside their 
12-mile territorial limits could well be "in play." With this background let us 
take a closer look at the Rules of Engagement (ROE): rules that were staffed 
and transmitted on the traditional basis that we would observe accepted interna- 
tional law at all times. 

Minimum force to ensure survivability was very much the keynote of early 
operations; hence, anticipatory self-defense had to be addressed. Our national 
ROE publication was our primary source document with the addition of some 
new rules with specific South Atlantic relevance. The Ministry of Defence 
produced a library of the rules most likely to be used and, hence, comprehensive 
pre-briefing of decision makers was possible. 

A clear statement of the ROE politico-military environment always accom- 
panied basic rules at any stage. This writer cannot overly stress the importance to 
the on scene commanders for having this overall perspective to guide their 
interpretation of the basic rules. Although the staffing and production of the rules 
were a notable success, the end product could not help but be complex. 
Identification criteria were established, as were the critical threat ranges of enemy 
units so as to deal appropriately with hostile intent when the situation warranted. 

In the ships of the task force, total familiarity with the rules by the command 
team involved much care and thoroughness, and extended to the Commander 
Task Group "quizzing" his commanding officers on their familiarity with the 
rules extant. It clearly demonstrated the degree that the military bent to political 
reality and to the constraints of international law, as it always must. I believe it 
also ensured that we had no engagements between our own units — firm 
identification criteria curbed too ready a trigger-finger! 

The following are some of the areas which posed the greatest problems: 

• How to deal with the shadower, particularly if it were a Boeing 707 or a 
trawler. 

• Resupply merchantmen and in particular the place of the naval auxiliary in 
this generic title. 

• The safety of civilians adjacent to naval gunfire support targets 10 miles away 
on a darkened island at night. 

• Unidentified air contacts by night or in low visibility. 

At this point it would be useful to describe actions in which my ship took part 
which required clear, unambiguous rules and, yet, where something less than 
unbridled aggressive action was called for. 



Craig 317 

On the afternoon of 1 May, we carried out the first, and almost the last, day 
bombardment of Port Stanley airport. A bombing and strafing attack from three 
Mirages convinced us all that night bombardments might be a more palatable 
and enduring prospect for the future. On that day, and, thereafter, our targets 
were clearly delineated and all of the 8,000 shells from HM ships were directed 
solely onto military targets with safety zones between them and adjacent civil 
areas. The accuracy of our systems allowed us considerable confidence. Indeed, 
to my knowledge only two dwellings were damaged by naval gunfire, and then 
only in the final stages of the advance upon Stanley. Clearly, if we had been 
allowed unrestricted engagements of key military targets, such as radar sites that 
had been placed near the population centers, we would have been more effective. 
But it was never considered nor could it be. Similarly, the frustration at being 
unable to "soften up" the heavy troop concentration at Fox Bay, Goose Green, 
and other places, was tempered by a clear awareness of the plight of the adjacent 
Falklanders. Nevertheless, we did ensure that the jockeys of the Port Stanley 
racecourse were confronted with somewhat uneven going for many months 
ahead — the Argentinians having placed considerable military presence on the 
racecourse. 

On 11 May the Alacrity undertook the first and only complete transit of 
Falkland Sound by an HM ship before the landings. We were detached from the 
carrier battle group at midday on 10 May and were to reconnoiter the southern 
harbors of both East and West Falklands — before attempting overnight, the first 
penetration of Falkland Sound. The mission was primarily to counter any 
Argentine resupply efforts, but the verified absence of mines would be most 
relevant to plans for the forthcoming landing. The ship made the 100-mile transit 
to the Falklands silently, at 25 knots, relying upon satellite navigation to skirt just 
south of shore radar detection range. Late in the afternoon, our Lynx flew a 
two-hour sortie during which the crew reconnoitered the rocky natural harbors 
south of the two main islands, whilst the ship continued westward almost to the 
longitude of Weddell Island to the extreme west of East Falkland. Both ship and 
aircraft were grateful for the thick overcast and the one-half mile visibility in fog 
which denied the Argentine Air Force an attack opportunity. 

Shortly before midnight, the ship entered the narrow southern strait of 
Falkland Sound, still grateful for the cover afforded by continuous rain and a 
100-foot cloud base. At this time there was intense speculation as to whether the 
Argentines had mined the Sound! Accordingly, we planned our transit at slow 
speed, in a totally quiet condition and without benefit of our echo sounder. Our 
anxiety at the possibility of mines was matched by uncertainty over Argentine 
artillery positions — the narrows of the channel often being litde more than two 
miles across. 

After one hour of transit the Lynx was launched to reconnoiter Fox Bay to 
the south and to act as a diversion. Flying conditions were appalling. At 0035 a 



318 Readings on International Law 

moving radar contact was detected in the channel 6 miles ahead of us, proceeding 
north at a similar speed, 10 kts. I gradually increased speed to close the gap in the 
hope of identifying the contact in the open waters to the north of Swan Island where 
there would be room to maneuver and to evade shore fire. When the distance had 
closed to 4.8 miles we saw the vessel alter sharply to port, then increase speed and 
change her heading to gain cover of North Swan Island two miles away. 

I fired a starshell in the hope of identifying the stranger, without success. 
Hence, I commenced fire at the vessel at 0112. The first dozen rounds were 
equipped with airburst fuzing so as to deter the vessel from further flight rather 
than to attempt to sink her. After two minutes I checked fire to assess the effect. 
But the quarry continued towards shelter, steering evasively. I then recom- 
menced fire at 01 17 with contact fuzing. We saw a number of hits, three of them 
sizable, even through the soaking gloom. Once more I checked fire, but still the 
ship continued toward shelter. Again I recommenced fire and, after about forty 
rounds, there was a large orange flash which rose up into the cloud base — two 
minutes later the radar contact faded from the screen. The vessel destroyed was 
later established to be the Argentine naval transport bias de los Estados, which was 
carrying, according to information obtained from captured Argentines later, 
325,000 liters of aviation fuel and some military vehicles. 

Life jacket lights were sighted close inshore, some five miles south of the 
Argentine garrison at Port Howard, hence out of navigable waters and beyond 
my assistance. Alacrity recovered her helicopter, completed her transit at high 
speed in order to deny Argentine forces any chance to retaliate, and finally passed 
through the northern channel at 0300. There were no mines along our track! 

The lesson here was that I had the rules which gave me the operational 
flexibility to engage a militarily important target. I had the required identification 
criteria to engage a valid target before he could escape. 

So what are the key "messages" to be learned that would be instructive 
regarding Exclusion Zones and Rules of Engagement? 

Exclusion Zones. 

• The exclusion zone can gready simplify the military commander's task — 
especially against submarine and air threats — particularly if the criteria which are 
deemed to demonstrate hostile intent by intruders are clearly defined. 

• Declaration of the zone must be early enough to allow the potential foe to 
respond as you wish — always allowing for the difficulties of strategic communica- 
tions, particularly with his subsurface units. 

• The benefits of exclusion zones will clearly hinge upon: 

(1) Adequate "police" force levels. 

(2) The presence and density of neutrals. 

(3) The complexities of identification criteria required. 

(4) The potential for escalation that their enforcement will generate. 



Craig 319 

Rules of Engagement. 

• In a world where the stakes of escalation become ever higher, the necessity 
for clear and comprehensive rules is plain. 

• Briefing staffs ashore must anticipate the distant military needs whilst their 
counterparts afloat harness and present their ROE requests with clarity, 
thoroughness, and an awareness of the political issues involved. 

• It is necessary to think through most thoroughly the problem of the 
innocent intruder or the fleeting submarine contact. 

• Educating both the politician and the military man is essential both for the 
compilation and the transmission of rules, as well as for the swift and responsible 
interpretation required "in the field." 

I believe that for the Royal Navy in the South Adantic, both the Exclusion 
Zones and Rules of Engagement worked well. I never felt my survival to be 
threatened by too rigid rules, nor was my flexibility of operation unduly impaired, 
and yet my freedom of action was always tied firmly to the political requirements. 
Equally important, I believe that throughout the campaign we conducted 
ourselves within the bounds of international law, and with due awareness and 
concern to our international reputation for a civilized code of conduct. 

Commander Craig was the Commanding Officer of HMS Alacrity during the Falklands 
Campaign. 



Chapter 21 

Grenada: The Spirit and the 
Letter of the Law* 



Captain William T. DeCamp, US Marine Corps 

During the predawn hours of 25 October, 1983, a multinational force from 
the United States and six Caribbean island nations launched "Operation 
Urgent Fury," the invasion of the island of Grenada in the eastern Caribbean 
Sea. President Reagan subsequently gave three reasons for the use of military 
force on Grenada. "First, and of overriding importance, to protect innocent lives, 
including up to 1000 Americans whose personal safety is, of course, my 
paramount concern. Second, to forestall further chaos, and third, to assist in the 
restoration of conditions of law and of governmental institutions to the island of 
Grenada." 

Since the time of the invasion, there has been considerable discussion among 
the friends and foes of the United States, and among political factions within 
America, the focus of which has frequently been the international legality of the 
action. The purpose of this paper is to address, not only the legality of the rescue 
mission, but also the morality of the mission in the broader context of realpolitik. 

Grotius identified the first just cause of war as, "an injury, which even though 
not actually committed, threatens our persons or our property. . . . The danger 
must be immediate, and as it were, at the point of happening. If my assailant 
seizes a weapon with the obvious intention of killing me, I admit too that I have 
a right to prevent the crime." 

On 27 October 1983, the Reagan Administration announced that evidence 
including "documents that were found at a Cuban military installation in the 
village of Frequente [indicated] that serious consideration was being given to 
seizing Americans as hostages. ... It appears we got there just in time to prevent 
a tragedy." 

There were eleven hundred Americans on Grenada at the time of the invasion, 
eight hundred of whom were students at St. George's Medical School, which 
operated two campuses on the island. U.S. diplomats returning to Washington, 
D.C. from Grenada on 23 October reported to the Administration that there 
was high anxiety among many of the St. George's medical students. Bill Riffley, 
a medical student living off campus, surely received a dose of high anxiety when 

* Reprinted from the Naval War College Review May-June 1985. 



322 Readings on International Law 

thirty Grenadians armed with Soviet AK-47 rifles kicked in the door of his house 
and held him and other students against their wills for three hours. Jeff Geller, 
another St. George's student, said, "We thought we could be potential hostages. 
We just wanted to get out, if we could." Charles Modica, the Chancellor of St. 
George's Medical School, indicated on 25 October that he did not believe the 
students were in danger. Modica was in New York at the time of his assessment. 
He later rescinded his statement after a briefing at the State Department. Why? 
Had he seen the so-called "hostage plan," or had he made a deal with the State 
Department to change his tune in exchange for future security on his Caribbean 
investment? 

Those critics who would have us believe that the Americans on Grenada were 
never in danger, or that Americans on the island were endangered because of 
the invasion, should review the history of Grenada from 1979, paying particular 
attention to events immediately preceding the invasion. Of special interest is the 
first decree of the Austin Regime, which took power on 13 October and six 
days later brutally executed the former Prime Minister, Maurice Bishop, and 
members of his cabinet, along with numerous innocent civilians. Austin imposed 
a 24-hour curfew and announced over the island's radio that violators would be 
shot on sight. Americans on the island of Grenada were in grave and imminent 
danger, whether they knew it or not. In response to this situation, Gerhard von 
Glahn makes the point, "If the citizens of a state are mistreated in another state, 
the former, it has been asserted, possesses a lawful right to intervene on behalf of 
its citizens after all available peaceful remedies have been exhausted. Despite 
much opposing argument by certain writers, the practice of states supports this 
right as yet." 

The United States, its citizens being threatened and mistreated, and facing the 
challenge of "internal subversion and indirect aggression, with few [and no 
reliable] means short of force to counter such activities," invaded Grenada and 
rescued the Americans on the island. There was no legitimate government to 
speak of or to speak to. 

The second justification that President Reagan gave for the invasion of 
Grenada was "to forestall further chaos." Granted, "law cannot create order in 
international relations, but a minimum degree of order can greatly increase the 
effectiveness of international law." Once the United States and her Caribbean 
partners established order in Grenada, they could "assist in the restoration of the 
conditions of law and of governmental institutions to the island" — President 
Reagan's third reason for invading Grenada. 

President Reagan did not choose to defend his decision to invade Grenada by 
applying the often used principles of invitational or humanitarian intervention. 
He might easily have claimed either of these justifications, and there are those 
who defend Reagan's decision based upon Scoon's invitation to the U.S. — trans- 
mitted through the Organization of Eastern Caribbean States by way of the Prime 



DeCamp 323 

Minister of Dominica — to intervene. After all, Scoon, not Austin, became the 
lawful authority in Grenada on Bishop's death. "Under generally accepted rules 
of international law, outside assistance cannot be requested by a government 
faced by a purely domestic civil war in which the outcome is in doubt, for such 
a government cannot truly speak for its country. But if a civil war is aided and 
promoted from the outside, by agencies of another state — if, in other words, 
subversive intervention has occurred — then the target government has a legal 
right to ask for assistance in its struggle to maintain itself. . . . 

"Under the conditions described — that is, a civil war supported, on the rebel 
side, from the outside — third parties may assist the incumbent government 
regardless of a possible diminution of the control exercised by it over its national 
territory." 8 

In the case of Grenada, Scoon, the Governor-General, had a legal right to ask 
for intervention and the United States had a legal right to respond. The 
Soviet/Cuban actions in Grenada, it can be argued, amounted to "subversive 
intervention." Edmund Burke in his Thoughts on the Cause of Present Discontents 
said, "When bad men combine, the good must associate; else they will fall, one 
by one, an unpitied sacrifice in a contemptible struggle." President Reagan did 
not disclose Scoon's invitation initially for fear of Scoon's personal safety — Scoon 
being in Grenada at the time of his request for U.S. intervention. 

But, claim Reagan critics, the Soviets were invited into Afghanistan in 1979. 
What, they ask, is the difference between the Soviet invasion of Afghanistan and 
the U.S. invasion of Grenada? For a clue one can examine Soviet actions after 
their invasion of Afghanistan. First, they promptly engineered a coup in which 
their "host," President Hafizullah Amin, and members of his family were brutally 
executed. Next, they then installed a new government led by Babrak Karmal, 
and they continue to wage war against the Afghani people five years later. 

In the writer's view, there is a reasonable and strong case for humanitarian 
intervention. "If certain practices or actions, revolting when judged by generally 
accepted standards of morality and decency, continue to take place in a given 
state despite protests and objections by its neighbors, then humanitarian con- 
siderations outweigh the prohibition on intervention and justify a decision to 
interfere. 

"If a moral consensus can be shown to exist, if the conscience of mankind is 
outraged by a repetition of repulsive practices within a state, then conceivably a 
moral justification may exist for intervention on the part of other states. The 
question remaining would of course, be the old one: Does the end justify the 
means? In this instance, justification might be admitted in favor of interference, 
provided an absence of selfish aims could be demonstrated." 

These justifications for the use of military force in Grenada have legal merit; 
however, if the Americans on the island were in danger, then no other 
justification was necessary. For the sake of discussion here, considerations will be 



324 Readings on International Law 

limited to the initial concerns for intervention. Nevertheless, it is easy to 
understand why those defending the Administrations's decision to invade 
Grenada felt compelled to give other justifications. Americans these days tend to 
ask not "Was that the right thing to do?" but rather, "Did we have a right to do 
that?" Traditionally, US citizens, arguing about wars, justified their Nation's 
conduct and judged the conduct of others. During the post- Vietnam era, 
Americans have tended to judge the conduct of their own government and justify 
the conduct of others. The results of these trends are disturbing because, "they 
shape, and . . . are sometimes intentionally used to shape, the political climate: 
they promote national flinching." Even more disturbing is the elevation of 
legality above morality by those who judge their nation. Was the use of force in 
Grenada moral? This is an important question. Put another way, did the United 
States, by invading Grenada, act in accordance with established international 
standards of good behavior? 

There are those who seek to follow the letter of the law which can bring 
death and slavery, and there are those who follow the spirit of the law 
which leads to freedom — freedom for life, liberty and the pursuit of happiness. 
The Americans who judged our invasion of Grenada to be illegal opted to follow 
the letter of the law. Their answers to the questions posed above regarding the 
morality of America's use of force in Grenada are predicated on their answer to 
the age-old question: "Does the end justify the means?" Antagonists of the 
Administration fail to take into account the motive behind the use of the means. 
Therefore, let us look at several different approaches to the question of ends and 
means and address the critical question of motive as it pertains to the invasion of 
Grenada. 

Gordon A. Craig and Alexander L. George, in their book, Force and Statecraft, 
discuss the problem of ethical and moral constraints on the use of force in foreign 
policy, and identify three schools of thought on whether and how moral 
principles apply in foreign policy. Each school of thought takes a different 
position on the question, "does the end justify the means?" The amoralists apply 
questions of morality to the ends only, not to the means to achieve those ends. 
The perfectionists argue that no matter how moral the ends, they never justify 
means that violate moral standards. A good example of a perfectionist is a pacifist 
who excludes the use of military force in all circumstances. Another type of 
perfectionist is the moralizer who dispenses with the question of the costs — to 
others as well as to himself — should his moralistic views on foreign policy actually 
be adopted. Some perfectionists espouse the idea that nations should behave 
according to the moral standards of individuals. The nonperfectionists reformulate 
the question so it reads: "Under what conditions do which ends justify what 
means?" This might be considered the realists' approach to the question; it is the 



DeCamp 325 

most difficult to apply in practice because chiefs of State can be guided only by 
very general principles in making decisions. For example: 

• "The objective of a foreign policy action must be genuinely constructive 
and praiseworthy if the decision maker is even to consider choosing morally 
dubious methods on its behalf. 

• "Morally dubious means should not be employed when less dubious means 
that may achieve the same objective are available. 

• "A statesman should choose that course of action which, in the given 
circumstances, promises to cause the least destruction of things of value. 

• "The statesman should be constrained in the choice of means by the 
'principle of proportionality."' 

This paradigm can be helpful in analyzing the morality and legality of the 
Grenadian rescue mission. 

Reagan critics comparing the Grenadian action to the Soviet invasion of 
Afghanistan would certainly link the President with the amoral school described 
above. Those who make the Afghan analogy disparage means without addressing 
motive. They do not consider morality of intent. 

"All the Grenadian operation has in common with recent Soviet enforcements 
of the Brezhnev Doctrine, so-called, is the unpleasant use of military force. If 
force per se is to be condemned [as it is by the perfectionists], if the legitimacy 
of its use under international law has nothing to do with intent or result, then it 
is anarchy merely disguised as law." The Grenadians freely chose the type of 
government that they wished. Law and order was restored to the island and to 
the region, and the balance of power in the Caribbean basin was maintained. 
Legal arguments cowered in the presence of a higher good, but few will argue 
that it would have been better to have had the pretense of law than the reality 
of moral victory. 

International law is a double-edged sword, providing protection for the 
innocent and judgment for the wrongdoer. Men who act illegally and immorally 
by international legal standards, are subject to judgment under the law. If 
international law provides protection for such men, its very purpose is subverted. 
General Austin, Mr. Coard, and others involved in the murder of Prime Minister 
Bishop, members of his cabinet, and innocent civilians in St. George's should 
have been subject to the doubled edge of the sword of international law — -judg- 
ment. "People who initiate massacres lose their right to participate in the normal 
(even in the normally violent) processes of domestic self-determination. Their 
military defeat is morally necessary." 

General Austin had run amuck and was intent on murdering his political 

opposition. "Against the enslavement or massacre of political op- 

1 r 
ponents . . . there may well be no help unless help comes from outside." When, 

as in the case of Grenada, help does come from outside, the reaction of the 

indigenous population is a genuine gauge of the morality of the action. The 



326 Readings on International Law 

Grenadian people overwhelmingly supported the invasion, and their gratitude 
was evident to American servicemen, congressmen, and journalists who were on 
the island during and after the invasion. The Grenadian's only fears were that 
Americans would leave the island and the Cubans and Soviets would return. The 
Soviet reception in Afghanistan has not been that cordial. 

If President Reagan were an amoralist, unconcerned with the morality of the 
means, would he have sent a delegation of State Department officials to Grenada 
at the eleventh hour in an attempt to arrange for the evacuation of Americans? 
It was only after those officials returned from Grenada on 23 October, indicating 
that conditions on the island were near anarchy and their efforts had been 
obstructed at every turn, that the President made the final decision to use force 
to rescue Americans on the island. 

The perfectionists and the moralizers among the critics of the invasion based 
their criticism on the belief that the United States* action violated the Charter 
of the United Nations, the Treaty of the Organization of American States and 
other conventions whose articles outlaw war. It is in these articles that the ideal 
is found. They ignored the articles in those conventions that attempt to limit 
war, and it is in those articles that legal justification for the Grenadian rescue 
mission can be found. "The U.N. Charter was supposed to be the constitution 
of a new world, but for reasons that have often been discussed, things have turned 
out differently. To dwell at length on the precise meaning of the Charter is today 
a kind of Utopian quibbling. And because the U.N. sometimes pretends that it 
already is what it has barely begun to be, its decrees do not command intellectual 
or moral respect, except among the positivist lawyers whose business it is to 
interpret them. The lawyers have constructed a paper world, which fails at crucial 
points to correspond to the world the rest of us live in." 

The United Nations attempted to condemn the United States for the 
Grenadian invasion. The fact that they were unable to do so points out the 
inherent flaws in the Charter. "Only he can judge of matters great and wise 
whose soul is likewise," said Montaigne. "In the United Nations' short history 
there have been many hundred uses of force by members for territorial aggran- 
dizement or religious, ideological, or ethnic advantage. If the United Nations, 
which condemned Zionism as racism, and would not condemn the Korean 
Airlines massacre, condemns the United States, it should be told that the world 
needs more uses of force such as the Grenadian invasion. . . ." 

The moralizers must be forced to deal with the costs of the adoption of their 
views in the real world. The potential costs far outweigh the benefits in practice. 
"Does an absolute condemnation of all warfare not put peace-loving nations at 
the mercy of those animated by an ideology of domination?" Should the people 
of Grenada have been dominated by armed thugs against whom they were 
defenseless? Implicit in these questions is the Manichaean division of the world, 
and for this there can be no apology, because twentieth century history and 



DeCamp 327 

political philosophy detail the aggressive nature of Marxism-Leninism. On the 
other hand, "domination of other peoples, as we have seen, has always created 
an uneasy feeling in Americans; they naturally look towards establishing the 

22 

institutions of freedom wherever they go."' Americans do not resort to the use 
of force simply to establish these institutions. American forces remained in 
Grenada after the operation for humanitarian and strategic reasons, and to insure 
the Grenadians' rights to choose their own form of government. If the perfec- 
tionists or the moralizers had had their way, the immediate costs might have been 
the loss of that right to choose and the loss of other rights which we Americans 
often take for granted. 

"The morality of foreign policy can be questioned not only when a state takes 
actions that conflict with ethical principles, but also when it fails to take actions 

2"^ 

to further a moral objective.'*' President Reagan had a good objective, and yet 
the moralizers demanded passivity. They talked about the law — how 
humanitarian, invitational intervention violated this treaty or that treaty. They 
talked about the "moral high ground" and how America would lose it by using 
force in Grenada. And they talked about Article 2 of the UN Charter, as the 
ideal. They should have taken note of American democratic ideals and the strong 
influence they exert upon American foreign policy. They should have studied 
ethics where they would have found that "it is in the extension of the notion of 
solidarity with others that the first evolution of ethics is to be seen. ... In the 
history of man, this idea of responsibility toward others has been wholly or 
partially formulated in various cultures at various times." It is a morality based 
on action. Altruism does not call for resignation, but rather, enhanced activity 
on behalf of humanity. "Slogans about nonintervention, and solemn disavowals 
of force, might allow Americans to seize the rhetorical high ground. The Soviet 

2S 

Union would continue to occupy more and more real ground," and neither 
one would ever reach the moral high ground, which is our primary objective. 
Alexander Solzhenitsyn said that to speak about high values and then never 
defend them is impotence. 

Alexis de Tocqueville recognized idealistic, abstract, but moral goals such as 
justice, dignity of the individual, freedom and equality. He also recognized the 
duality of our natures, and he spoke of a pragmatic sphere in which we assess 
what works too. He took a contextualist approach to the question of whether 
the ends justify the means, just as the nonperfectionists do. President Reagan 
approached the crisis in Grenada in a nonperfectionist way, taking into account 
all the circumstances of the situation. He was guided by general principles in his 
decision. His objective was "genuinely constructive and praiseworthy." He 
exhausted "less dubious means" to achieve his objective. The President chose a 
course of action which caused "the least destruction of things of value," if we 
are to consider de Tocqueville's intangibles as things of value. Finally, he was 
"constrained in the choice of means by the principle of proportionality." Critics 



328 Readings on International Law 

of Reagan's use of force in Grenada are particularly fond of zeroing in on the 
numbers of American fighting men that landed on Grenada to evict a few 
hundred Cuban "construction workers." "People who only ask how much is 
enough, or how few we can barely get by with, tend to develop an instinct for 
the capillaries. That is not the instinct it is wisest to cultivate if you want to win 
real — not bureaucratic — battles." 

"The facts of war are often in total opposition to the facts of peace .... The 
efficient commander does not seek to use just enough means, but an excess of 
means. A military force that is just strong enough to take a position will suffer 
heavy casualties in doing so; a force vastly superior to the enemy's will do the 
job without serious loss of men." 

President Reagan, in his decision to use force in Grenada, balanced morality, 
legality, and reality; nevertheless, like Melville's Billy Budd, he was lauded by 
the people but hung legally for doing what was morally right. 

The realities of geopolitics, national policies, economics, and military 
strategy may all have been considered by the Reagan Administration prior 
to the President's decision to invade the island. Nevertheless, ideas and ideals, 
based on definite moral preoccupations, were a very important factor in the 
President's decision-making process, and led him to conduct American foreign 
policy as he did in Grenada. "The judgments we make are best accounted for if 
we regard life and liberty as something like absolute values and then try to 
understand the moral and political processes through which these values are 
challenged and defended." 

The United States' action to protect the lives of Americans and Grenadians 
by conducting an invasion of the island of Grenada secured the real and moral 
high ground for America. The temporary occupation of the island — a source of 
irritation to Reagan critics — insured for the Grenadians, life, liberty, choice and 
security against the forces that threatened them in the first place. "The world of 
war is not a fully comprehensible, let alone a morally satisfactory place. And yet 
it cannot be escaped, short of a universal order in which the existence of nations 
and peoples could never be threatened. There is every reason to work for such 
an order. The difficulty is that we sometimes have no choice but to fight for 

it.- 29 

It is important for us, during this critical time in our history, to recall the words 
of John Stuart Mill: "War is an ugly thing, but not the ugliest of things. The 
ugliest is that man who thinks nothing is worth fight or dying for." In Grenada, 
American soldiers, sailors, and marines fought so that others might enjoy life and 
liberty and the ideals that de Tocqueville so eloquently elaborated over a century 
ago. We mourn for those who died on Grenada, but celebrate in the knowledge 
that the United States of America is still willing to defend those ideals when 
challenged. America's moral courage is equal to the physical courage of her 



DeCamp 329 

warriors. The cost of American action in Grenada was great, but the cost of 
inaction might have been far greater. The Spirit lives. 

Captain DeCamp was serving as the Commanding Officer H&S Company, 3rd Battalion, 8th 
Marines at the time this article was first published. 

Notes 

1. Text of Briefing at the White House, The Boston Globe, 26 October 1983, p. 2. 

2. GROTIUS, THE LAW OF WAR AND PEACE 73 (Kelsey trans. 1925). 

3. Philip Taubman, U.S. Reports Evidence of bland Hostage Plan, The New York Times, 28 October 1983, 
p. A14. 

4. Why the Surprise Move in Grenada — And What Next? U.S. News and World Report 33 (7 November 
1983). 

5. VON GLAHN, LAW AMONG NATIONS 161 (1976). 

6. Weighing the Proper Role, Time 49 (7 November 1983). 

7. Fawcett, Law and Power in International relations (1982). 

8. Supra n. 5 at 163-164. 

9. Id. at 165-166. 

10. Will, The Price of Power, Newsweek 142 (7 November 1983). 

1 1 . Walzer, Just and Unjust wars xiii (1977). 

12. Supra n. 10 at 142. 

13. CRAIG & GEORGE, FORCE AND STATECRAFT 275-276 (1983). 

14. Id., chap. 19. 

15. Yoder, Military Action and the Lawyers' Quibbles, The Boston Globe, 29 October 1983, p. 15. 

16. Supra n. 15 at 15. 

17. Supra n. 11 at 106. 

18. Id. at 101. 

19. Id. at xiii. 

20. Supra n. 10 at 142. 

21. French Bishops Face Up to Nuclear Peril, The Wall Street Journal, 29 November 1983. 

22. PERKINS, THE AMERICAN APPROACH TO FOREIGN POLICY 72 (1962). 

23. Supra n. 13 at 270. 

24. SCHWEITZER, THE EVOLUTION OF ETHICS, Unified English Composition 241. 

25. Supra n. 10 at 142. 

26. Woolsey, Military Options: Backward March, The Washington Post, 25 February 1980, p. A22. 

27. WATSON, CHIEF OF STAFF: PRE-WAR PLANS AND PREPARATIONS (U.S. ARMY IN WORLD 
WAR II) 12 (1950). 

28. Supra n. 1 1 at xvi. 

29. Id. at 327. 



Chapter 22 

International Law and the Use of 

Force In Peacetime: 

Do U.S. Ships Have to Take the First Hit?* 



B 



George Bunn 



ecause one missile may sink a ship, naval officers often ask: 



I know I can use force in self-defense if my ship is actually attacked. But do I have 
to take the first hit? 

This paper discusses how international law, Navy Regulations and naval rules 
of engagement (ROE) answer this question for the on-scene commander. It also 
deals with the more general question sometimes asked by the President and other 
national command authorities: Are there circumstances when the United States 
may use force first? 

In general, international law, Navy Regulations and ROE permit the use of 
force in peacetime only in self-defense. Their policy is to restrain aggression, to 
prevent the outbreak of hostilities, and to limit escalation if shooting starts. There 
are, however, a few circumstances where shooting first is permitted. 

First, Navy Regulations and typical peacetime ROE authorize an on-scene 
commander to shoot first when necessary for anticipatory self-defense of forces 
under his command — for example, to shoot a kamikaze aircraft diving on a ship 
in time to ward off the blow. This is called unit self-defense. 

Second, shooting first may be specifically authorized by higher command in 
a few other cases, including: 

• when necessary for anticipatory self-defense of other \J.S. forces, citizens or 
territory ("national" self-defense); 

• when authorized by the United Nations or a regional collective security 
agency to deal with a threat to the peace; 

• to protect Americans in danger in foreign territory because, for example, of 
an internal insurgency or civil war; or 

• at the request of an established government to help put down an insurgency 
within its territory. 

• Reprinted from the Naval War College Review May-June 1986. 



332 Readings on International Law 

Third, force may of course be used first when necessary for law enforcement in 
internal and territorial waters and occasionally in international waters. 

The Law of Self-Defense 

The law of self-defense is like the rule parents use to restrain violence between 
their kids. What parent has not asked, "Who started it?" when confronted with 
a fight. Kids learn early that they need especially good justification for hitting 
first. 

In our own national practice of international law, we need to go back only 
150 years for a classic statement of the law of self-defense. During an 1837 
rebellion against British rule in Canada, the insurgents secured recruits, weapons 
and supplies from across the border in New York and used an island on the 
American side to train recruits. As a result, an armed band working for the British 
crossed the border from Canada to attack a small steamer, the Caroline, used by 
the insurgents to transport recruits, weapons and supplies to Canada. The 
attacking party killed several Americans, set fire to the Caroline and sent her over 
Niagara Falls. 

The British claimed "self-defense" as a justification for using force on 
American soil. Secretary of State Daniel Webster admitted that self-defense could 
sometimes justify an attack across a border, but insisted that the United States 
Government itself had remained neutral even if American soil was used to aid 
the insurgents. He concluded that there was no necessity for self-defense in this 
case. Webster's description of the law of self-defense has become a classic: 

The only exception to the "inviolable character of the territory of independent 
states" is self-defense, and that should be confined to cases in which the "necessity 
of that self-defense is instant, overwhelming and leaving no choice of means and 
no moment for deliberation." An attack on another state's territory "justified by 
the necessity of self-defense must be limited by that necessity and kept clearly 
within it." 

The British did not disagree with this statement of the rule and finally offered 
an apology, while insisting that their intervention was within the rule. Webster 
did not require more. 

By 1946, Webster's statement had become so widely accepted that the 
Nuremberg War Crimes Tribunal said it reflected general international law. In 
rejecting a plea of self-defense by German leaders to a charge involving first use 
of force, the Tribunal adopted Webster's words in the Caroline case as its own. 
Relying also on a 1928 treaty which renounced recourse to war as an instrument 
of foreign policy, the Tribunal convicted Germans of the war crime of initiating 
aggression for invading Norway. The Germans had attempted to justify their 



Bunn 333 

invasion as self-defense against an anticipated British attack using Norway as a 
base. 

Today, the U.N. Charter repeats both Webster's concern for the "inviolable 
character of the territory of independent states" and his acceptance of a right of 
self-defense. The Charter calls on all members to settle their disputes by peaceful 
means and enjoins them from using "force against the territorial integrity or 
political independence of any state." But it recognizes "the inherent right of 
individual or collective self-defense if an armed attack occurs. . . ."" 

U.S. alliances, reflecting this language, typically state that an "armed attack" 
against one ally will be considered an attack against all — justifying collective 
self-defense. The North Atlantic Treaty so provides. In the Americas, the Rio 
Treaty of alliance contains similar language. And the parallel charter of the 
Organization of American States contains a rule like that of the United Nations 
against intervention "in the internal or external affairs of any state." 

How does this body of law work in practice? The military enforcement 
machinery contemplated by the U.N. Charter to enforce its rule against shooting 
first was never created. Agreements allocating armed forces permanently to the 
U.N. Security Council could not be negotiated, and the veto has been exercised 
repeatedly, first by the Soviet Union and increasingly by the United States. The 
Security Council does not provide reliable central authority to enforce the rule 
against first use of force. Does this mean the rule has no value? 

A system with central law-giving and law-enforcing authority may produce 
better compliance with rules than does a decentralized system of sovereign States. 
But even with enforcement authority, domestic laws against murder or assault 
are often violated, as are family rules against hitting first. Yet we keep them "on 
the books." 

So it is with the rules against first use of force. There have been many uses of 
force which seem unjustifiable as self-defense in the 40 years since the U.N. 
Charter was adopted. But despite this and the lack of reliable central enforcement 
authority in the U.N. Security Council, States have not repealed the rule against 
first use of force. And they usually attempt to justify their uses of force by claiming 
self-defense. 

Let us look at a recent application of the rule — the Argentine invasion of the 
Falkland-Malvinas Islands in 1982. Argentina was not deterred from invading 
the Falkland's by the U.N. Charter's rule against first use of force. It claimed the 
islands as its own: How, it argued, could protecting its territory from British 
occupation be illegal (even if the British had settled and occupied most of the 
Falklands for over a century)? 

The rule against first use of force did assist the British in justifying their response 
in self-defense. Aware, of course, that no U.N. peace force would come to British 
aid, Prime Minister Thatcher said that Britain had "a duty to the whole world 
to show that aggression will not succeed," a duty to exercise self-defense to 



334 Readings on International Law 

enforce the rule against first use of force. This justification mobilized both 
domestic and allied public opinion to her cause. Indeed, Secretary of State Haig's 
memoirs show that enforcing the rule against first use was important in gaining 
American support for Britain rather than for our other ally, Argentina. In the 
end, the rule gave moral strength and allied assistance to the British and it helped 
isolate the Argentines, even from some of their most important Latin American 
allies. Indeed, the U.N. Security Council called upon Argentina to withdraw 
with only Panama voting no, though the Security Council offered no force to 
help the British. 7 

The Intervention Exceptions to the General Rule 
Against Shooting First 

The Falklands case was a clear-cut armed invasion, as was Grenada in 1983. 
In both cases, the invader was condemned at first by most of the other States of 
the world. In the Grenada case, the United States justified its invasion on three 
grounds: the intervention was requested by the Governor General of Grenada 
to put down an insurgency; the intervention was undertaken to protect American 
medical students in danger because of the insurgency; and the intervention was 
authorized by a regional collective security organization, "standing in the shoes** 
of the U.N. Security Council. I will discuss each of these justifications. 

Intervention of the Request of the Sovereign Government, The Governor General 
of Grenada had asked for assistance from outside in defending the island's 
government from a military coup which had resulted in the murder of the Prime 
Minister and some of his cabinet. The U.N. Charter, of course, permits collective 
self-defense against an armed attack from the outside. Many nations justify 
assistance to an established government against a domestic insurgency on similar 
grounds, especially if the insurgency is assisted from the outside. But the 
Governor General had been captured by the insurgents. Moreover, the United 
States could not make his request public while he was in captivity for fear of 
endangering his life. As a result, this justification was not described in initial 
press accounts. 

Intervention to Protect Nationals. The second justification was that the American 
medical students on the island were in danger following the coup, and there 
seemed to be no established government to protect them. Protecting a State's 
nationals abroad as well as at home can be a part of self-defense. Many States 
recognize a right of intervention when: there is an imminent threat of danger to 
nationals of the intervenor; the government of the State intervened is unable or 
unwilling to protect them; and the intervention is confined to providing for their 
protection. 



Bunn 335 

Intervention Authorized by a Regional Collective Security Agency "Standing in 
the Shoes" of the Security Council, The third justification was that the Organiza- 
tion of Eastern Caribbean States had authorized a multilateral peace force to take 
over Grenada long enough to bring back peace and order. Under the U.N. 
Charter, the Security Council has authority to use peace forces which nations 
put at its disposal to deal with threats to the peace and acts of aggression. 
Without a large permanent peace force and with repeated exercise of the veto, 
the Security Council has usually been unable to perform such a function. 

Under the U.N. Charter, regional collective security organizations may deal 
with threats to the peace if authorized to do so by the Security Council. In 
several cases, regional organizations have taken collective action without prior 
Security Council authorization but then reported their action to the Security 
Council. This is what happened in Grenada. But the Security Council would 
have condemned the action as an invasion in violation of international law if the 
United States had not exercised its veto. The General Assembly did vote 
overwhelmingly for such a condemnation, with almost all of our allies deserting 
us in the final vote. 

One lesson of the Falkland's and Grenada cases is certainly that a clear-cut first 
use of force to cross boundaries is difficult to justify to the world, but self-defense 
against such an invasion is not. If the general rule against first use of force has no 
other meaning, it means this much. That is one reason why general peacetime 
rules of engagement typically provide no authority for an on-scene commander 
to use force first except for an imminent threat of armed attack on his command, 
such as a kamikaze aircraft diving on his ship. First uses of force based on other 
grounds must ordinarily be authorized by the national command authorities so 
that the responsibility will rest ultimately where it belongs, on the President. 

The Anticipatory Self-Defense Exception to the 
General Rule Against Shooting First 

Many States contend that self-defense is only permitted against and actual 
"armed attack" under the U.N. Charter language quoted above. But U.S. 
practice has long recognized an inherent right "to counter either the use of force 
or an immediate threat of the use of force," to quote a Navy regulation. 16 Typical 
naval rules of engagement for an on-scene commander are likely to provide 
something like this: "The right to exercise self-defense is based on 'necessity' and 
'proportionality.' The requirement of 'necessity,' or present danger, arises when 
an armed attack occurs. The requirement may also be satisfied when there is a 
threat of imminent attack, in order to prevent that attack or reduce its impact. In 
either case, 'proportionally' requires that the use of force be limited in intensity, 
duration and magnitude to what is reasonably necessary to counter the attack or 
threat of attack." 17 



336 Readings on International Law 

This language is but an elaboration of Daniel Webster's rule of self-defense in 
the Caroline Case. He probably contemplated anticipatory self-defense when the 
imminence and magnitude of the threat were great enough. The British 
justification for attacking the Caroline was that she would be used in the future 
to support the insurgency. 

Threats move faster and can result in more violence than in Webster's day. 
When confronted with a truck bomber driving full speed towards a Marine 
barracks, or a kamikaze aircraft diving on a ship, most people would agree that 
force can be used first to ward off the blow. The situation is not different from 
the domestic legal defense against a charge of murder for shooting a man about 
to shoot you. If you can convince the prosecutor or jury that those were the 
facts, you will be exonerated. 

When is an armed attack sufficiently imminent to justify anticipatory self- 
defense? 

• The official justification given by the United States for its forceful quarantine 
of Cuba in 1962 to persuade the Soviet Union not to bring more ballistic missiles 
to Cuba (and to remove those already there) did not rely expressly on self- 

1 8 

defense. The use of those missiles to attack the United States was not yet 
immediately threatened. If a State was justified in using force first — preemptive- 
ly — against its neighbor whenever that neighbor acquired threatening new 
weapons, there might be little left of the rule against first use. 

• In the 1981 Gulf of Sidra incident, U.S. pilots were authorized to shoot two 
Libyan aircraft after the Libyans had shot first, missed and turned away. The 
Libyan aircraft represented a continuing present danger. They had shown their 
hostility clearly and could have turned around at any moment. 

• Are there circumstances before an opponent's first shot when the threat is 
sufficiently imminent to justify self-defense? What if the Cuban missiles were 
known to have nuclear warheads and an attack on the United States appeared 
imminent? I have already referred to the truck bomber and the kamikaze pilot 
where the attack had been initiated but had not yet struck. 

Until the Israeli destroyer Eilat was destroyed by Styx missiles from an Egyptian 
patrol boat in 1967, naval commanders usually assumed that they could "take 
the first hit" and still have time to defend themselves effectively. In ROE lingo, 
having to take the first hit means that potential enemy forces cannot be declared 
"hostile" even in times of high tension unless they have been guilty of a "hostile 
act" (e.g., shooting first). As D.P. O'Connell, an authority on the influence of 
law on navies, put it: "Following that event [the Eilat sinking] naval speculation 
experimented with clarifying the ambiguous borderland between 'hostile intent' 
and 'hostile act,' so as to encompass the possibility of anticipating immediate attack 
so that tactical advantage would not pass irrevocably to the potential assailant. 
This has usually [included] . . . combinations of such matters as the unhousing 
of a missile or the locking on of a fire-control radar in firing positions.'" 



Bunn 337 

O'Connell described several circumstances in which political intelligence and 
technical sensors give the commander sufficient information to make a deter- 
mination of "hostile intent'* (i.e., imminent threat of armed attack). Peacetime 
ROE tell the commander what to do in such a circumstance to avoid "taking 
the first hit." In the case of a possible missile attack by a ship or aircraft identified 
as a potential adversary by intelligence and local observation, the ROE might 
authorize a "hostile" designation in the judgment of the on-scene commander 
"when the potential attacker's radar guidance system has 'locked on' to target, 
supposing that the missile is 'beam-riding.' It has been argued that this is the 
moment of 'armed attack' and the moment when measures of force in self- 
defense may be undertaken." Based on this argument, ROE may provide 
detailed criteria for an on-scene commander's decision whether an attack on his 
unit is so imminent as to justify shooting first in self-defense. 

The Law Enforcement Exception to the 
Rule Against Shooting First 

Navies and coast guards around the world may use force first if necessary for 
law enforcement in waters and for crimes over which they have enforcement 
jurisdiction. The U.S. Navy is limited by domestic regulations from stopping 
vessels and aircraft for law enforcement purposes. That function is ordinarily 
performed by the Coast Guard or other civilian agencies. But when the primary 
purpose of the enforcement actions is a military or foreign affairs function, or 
when civilian agencies do not have ships or aircraft available to perform the 
function, naval commanders may receive orders to do so. 

A coastal nation in its own internal and territorial waters has sovereign 
authority to enforce its own laws against ships of other nations, though there are 
exceptions for certain crimes committed on board ships in transit or even in 
port. In "international" waters, that is, beyond its territorial seas (which may 
now extend 12 miles from its coast), a nation may enforce its laws against ships 
flying its flag. Moreover, against foreign flag ships, it may enforce customs, 
fiscal, immigration, sanitary and resource-protection laws out as far as 24 miles 
from its coast: if it has claimed a 12-mile territorial sea, it may claim 12 more 
miles as a contiguous zone in which it may enforce laws on these subjects. 
Resource-protection jurisdiction may continue even further to 200 miles from 
its coast if it claims an exclusive economic zone of that width. Resources 
include, of course, fish and minerals. In these two zones (contiguous and 
economic) and on the high seas beyond (all referred to as "international" waters 
here), a coastal nation may also engage in "hot pursuit" to arrest vessels which 
have violated certain of its laws while they were in its internal or territorial waters, 

28 

or sometimes even in the contiguous or economic zones. 



338 Readings on International Law 

Thus, the general rule permitting only a ship's flag State to use force in order 
to stop the ship in international waters has exceptions for a few crimes of particular 
concern to a coastal nation. In the case of offenses committed aboard civil aircraft, 
the general rule is also that only the flag State, the nation of registry, has 
jurisdiction to force the aircraft down over international water in order to arrest 
and prosecute. Another State "may not interfere with an aircraft in flight in order 
to exercise its criminal jurisdiction." There are, however, exceptions including 
when the offense was committed "by or against" a national of the arresting 
State. 29 

For both ships and aircraft, there are thus important exceptions to the general 
rule that only the flag State may use force to arrest when in international waters 
or airspace. Moreover, for at least one offense, treaties permit any State which is 
a party to stop ships or aircraft on or over international waters even though they 
do not fly its flag. The 1982 U.N. Convention on the Law of the Sea permits 
"every State" to seize a pirate ship or aircraft on or above international waters 
even if it is flying the flag of another nation. 

The international law dealing with terrorism may be moving in this direction. 
There are now treaties against aircraft hijacking and sabotage, and against 
hostage-taking whether on aircraft or elsewhere. Each of these treaties expands 
criminal jurisdiction over the offenders to party nations beyond the nation having 
sovereignty over the aircraft, ship or territory where the offense occurred. For 
example, in addition to this State, these treaties give jurisdiction to any party 
where the aircraft later lands with offenders on board or where an offender is 
later found. In the case of the hostage-taking treaty, the nation-party of which 
the offenders are nationals and any other party of which the hostages are nationals 
may also exercise jurisdiction. 

Each of these treaties requires States which are within one of these interested 
classes "to take such measures as may be necessary" to arrest and prosecute 
offenders. Each of them establishes a basic obligation on a nation which is party 
and which gets its hands on an alleged offender: either turn him over to your 
own prosecutors or to those of another nation-party classed as interested by the 
treaty, for example, one whose nationals had been held hostage. 

This does not establish universal jurisdiction over terrorists but its purpose is 
to deny them sanctuary anywhere. Nor does it clearly authorize using force to 
arrest ships in international water or to bring down aircraft in international 
airspace in order to arrest terrorists. But the new treaties impose obligations on 
many States to take various measures to arrest hijackers, saboteurs and hostage- 
takers, and to turn them over to their own prosecutors or to those of another 
party within an interested class. 

How do these rules fit the measures taken by Egypt, Italy and the United 
States to deal with hijackers in the recent Achille Lauro case? Taking control of 
the Achille Lauro by force and holding its passengers as hostages clearly constituted 



Bunn 339 

"hostage-taking" if not piracy. Hostage-taking includes seizing, detaining or 
threatening to kill other persons (hostages) in order to compel a third person to 
do something as a condition for release of the hostages. Under the hostage- 
taking treaty, the United States was authorized to take necessary measures to 
arrest the hijackers because Americans were hostages. Italy, though not yet a 
party to the treaty, could have stopped the ship in international waters to arrest 
the hijackers for violating Italian law because the ship flew the Italian flag. 

When the hijackers gave themselves up to Egypt, that country had an 
obligation under the hostage-taking treaty (to which it is a party) to turn them 
over to its own prosecutors or to extradite them to one of the other States in the 
interested classes (including the United States and all the other parties whose 
nationals were taken hostage or whose nationals were among the hijackers). 
Instead of doing so, Egypt planned to turn them over to the Palestinian Liberation 
Organization, ostensibly for prosecution. When the Egyptian airliner, under 
police or military control, in which the hijackers were aboard was intercepted 
by American naval aircraft over international waters, it had been denied landing 
permission in both Tunisia and Syria where different PLO factions had head- 
quarters. The U.S. aircraft then forced it to land in Italy. 

Forcing the aircraft down to assert criminal jurisdiction would have fit an 
exception to the general rule limiting jurisdiction in international waters to the 
flag State if the hijacking had occurred on a civil airliner rather than on the Achille 
Lauro because, among other reasons, Americans were among the hostages. In 
actuality, the hostage-taking occurred earlier aboard ship, and the offenders were 
under Egyptian police or military control on the aircraft. But since Egypt had 
failed to exercise its responsibility to prosecute or extradite under the hostage- 
taking treaty, forcing the plane down was important for the United States to 
carry out its obligations to "take necessary measures" to assure prosecution under 
that treaty. Did this justify the United States taking the law into its own 
hands — violating its cherished notions of freedom of navigation and overflight 
in international waters? I believe it did, to fulfill the international duty which 
Egypt had but failed to perform. 

Customary international law is made by the action and reaction or acquies- 
cence of States. A new rule may be in the making permitting seizure of terrorists 
by those States within the interested classes specified in the treaties when another 
party with an obligation to do so refuses. 

Conclusion 

The policy of international law, ROE and Navy Regulations is to discourage 
on-scene commanders from starting wars which nobody wants — from shooting 
first in peacetime — unless the survival of their ships or aircraft depends upon it. 
According to O'Connell, the basic assumption is that naval force, when used, 



340 Readings on International Law 

"will be progressively applied to achieve or defeat political goals without resulting 
in hostilities; that if hostilities do occur they can be brought to a successful 
termination without progression to another mode of warfare or to other areas of 
conflict. Intrinsic to this assumption is the requirement, to put it simply, that the 
other side fires first, for then the use of force can be presented as self-defense 
.... The rules of the game . . . require that the burden [of shooting first] be 
shifted, if possible, to the other side in the event of a confrontation of warships, 
or at least that the opening of fire be necessary to enforce the law. . . ." 

But modern technology can make taking the first hit lethal. Yet the rule against 
shooting first remains on the books. And U.S. experience with the exceptions 
to the rule should convince any reader that a successful political justification for 
using force is extraordinarily difficult except when based upon self-defense or 
law enforcement, as O'Connell says. It is therefore not surprising that the only 
justification for shooting first given the on-scene commander by typical 
peacetime general ROE is anticipatory self-defense of his unit. 

Modern technology assists him in determining the imminence of an attack on 
his unit — just as it makes his adversary's weapons come further, faster, more 
accurately and more destructively, toward him. In the end, the high standard 
given by Daniel Webster is useful to have in mind even if it must be interpreted 
in light of modern technology: Anticipatory self-defense should be confined to 
cases in which the necessity is "instant, overwhelming and leaving no choice of 
means and no moment for deliberation." 

This raises a difficult question with which I will conclude this paper: Should 
the United States avoid shooting first (with the exceptions of self-defense and 
law enforcement) whether or not the Soviet Union and other hostile States 
regularly do so? My answer is yes, for the following reasons: 

• The rule against first use of force is based on long-held Western values and 
diplomatic goals. When our allies perceive us as departing from the rule, we are 
likely to lose their support, at least temporarily — as we did in Grenada. In the 
long run, we may consider the strength of our alliances to be more important to 
our security than exercising the freedom to flout the rule. 

• A long-term U.S. diplomatic goal is, to quote Woodrow Wilson, "to make 
the world safe for democracy." Democracies cannot flourish as well in a lawless, 
"might-makes-right" world. To sustain support for our leadership in the direc- 
tion of a world which respects the rule of law, we need to comply ourselves. 

• The rule against first use of force probably still has some deterrent effect, 
though that is difficult to prove. States never say: "But for the rule we would 
have commit